Import, export, and regional consent in the Inter-American Court of Human Rights

European Journal of International Law

Volumn 19, Issue 1, 2008, Pages 101-123

  Neuman, Gerald L ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 42949149220     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn002     Document Type: Article

References (148)

1. See J.M. Pasqualucci, The Practice and Procedure of the Inter-Arnerican Court of Human Rights (2003).
2. The advisory jurisdiction of the Inter-American Court under ACHR Art. 64 extends not only to the interpretation of substantive rights under the Convention itself (a power that the European Court lacks), but also to interpretation of other human rights treaties ratified by OAS member states. The Court has construed the latter category generously. See ' Other Treaties' Subject to the Advisory Jurisdiction of the Court (Article 64 Arnerican Convention on Human Rights), Advisory Opinion OC-1/82, Inter-American Court of Human Rights, Series A No. 1 (1982).
3. ACHR Art. 63(1). The ACHR also grants the Court express authority to order provisional measures for the protection of individuals, a power that the Court exercises at early stages of contentious cases that may never come before it on the merits: ACHR Art. 63(2); Pasqualucci, supra note 1, at 293.
4. The degree to which the American Declaration has remained an aspirational document like the Universal Declaration of Human Rights, or has become legally binding by absorption into the OAS Charter, is a disputed issue, especially as between the Inter-American Commission and the US. The Inter-American Court sided with the Commission on this point in Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, Inter-American Court of Human Rights, Series A No. 10 (1989). Currently, 24 OAS states are parties to the ACHR; 11 (counting Cuba) are not. Trinidad and Tobago was previously a party, but denounced the Convention in 1998.
5. Contentious cases include cases brought by individuals against a state party and interstate cases (though the latter are extremely rare). Under the ACHR, states parties must accept the competence of the Commission to receive petitions from individuals, but states parties have the option whether or not to accept the competence of the Court. By now, the great majority of states parties have done so. By contrast, the Court's advisory jurisdiction may be invoked, either by OAS member states or by OAS organs, without resort to the Commission.
6. Moreover, individuals have no avenue to the Court in the majority of cases where the Commission fails to process the petition to a definite conclusion.
7. See, e.g., Las Palmeras Case (Preliminary Objections), Inter-American Court of Human Rights, Series C, No. 67 (2000), at para. 34 (holding that the Commission lacks competence to apply international humanitarian law as such in contentious cases); Genie Lacayo Case, Inter-American Court of Human Rights, Series C, No. 30 (1997), at para. 93 (holding that the Commission's recommendations are not binding).
8. See, e.g., Five Pensioners Case, Inter-American Court of Human Rights, Series C, No. 98 (2003) paras. 146-148 (rejecting Commission's claim that reduction in pensions violated ACHR Art. 26); Castillo Petruzzi Case, Inter-American Court of Human Rights, Series C, No. 52 (1999), at paras. 102-103 (rejecting the Commission's theory that trying foreign nationals for treason violated the right to nationality under ACHR Art. 20); Las Palmeras Case, Inter-American Court of Human Rights, Series C, No. 90 (2001), at para. 47 (finding the Commission's evidence that state forces executed one of the alleged victims insufficient).
9. Godínez Cruz Case, Inter-American Court of Human Rights, Series C, No. 5 (1989), at para. 172; Ituango Massacres Case, Inter-American Court of Human Rights, Series C, No. 148 (2006), at para. 191.
10. E.g., in the Ricardo Canese Case, Inter-American Court of Human Rights, Series C, No. 111 (2004), at paras 128, 131, 134, the Court found that restrictions on a politician's travel abroad, resulting from a slander conviction, violated both his right to freedom of expression under ACHR Art. 13 and his right to freedom of movement under ACHR Art. 22; the challenged orders violated Art. 22 in several respects, because they lacked a statutory basis, and were not 'necessary', and were not proportionate. The Court does not always analyse every conceivable violation raised by the facts. When it wishes, it employs the European Court's typical practice of treating one finding of violation as making an examination of alternative characterizations of the same actions unnecessary. See, e.g., Garcia Asto and Ramírez Rojas Case, Inter-American Court of Human Rights, Series C, No. 137 (2005), at para. 245 (no need to consider violation of family rights under Art. 17 where separation and the suffering of the family were taken into account in evaluating conditions of detention under Art. 5).
11. See Inter-American Court of Human Rights, Annual Report 2006 (2007), at 71.
12. The higher numbering of the Court's judgments reflects decisions at multiple stages of some cases. The Court had also issued 19 advisory opinions: ibid.
13. The Court has also ordered states to honour the memory of law enforcement officers who were killed in retaliation for investigating the violation: Moiwana Village Case, Inter-American Court of Human Rights, Series C, No. 124 (2005), at para. 216; Carpio Nicolle Case Inter-American Court of Human Rights, Series C, No. 117 (2004), at para. 137; Mack Chang Case, Inter-American Court of Human Rights, Series C, No. 101 (2003), at para. 279.
14. Villagrán Morales Case (Reparations), Inter-American Court of Human Rights, Series C, No. 77 (2001); Gómez Paquiyauri Brothers Case, Inter-American Court of Human Rights, Series C, No. 110 (2004), at para. 236.
15. Mack Chang Case, Inter-American Court of Human Rights, Series C, No. 101 (2003), at para. 286.
16. 19 Tradesmen Case, Inter-American Court of Human Rights, Series C, No. 109 (2004), at para. 273.
17. Miguel Castro Castro Prison Case, Inter-American Court of Human Rights, Series C, No. 160 (2006), at para 454.
18. Goiburá Case, Inter-American Court of Human Rights, Series C, No. 153 (2006), at paras 130-132; La Cantuta Case, Inter-American Court of Human Rights, Series C, No. 162 (2006), at para. 227.
19. See Caesar Case, Inter-American Court of Human Rights, Series C, No. 123 (2005) (separate opinion of judge Ventura Robles), at para. 19.
20. See Pasqualucci, supra note 1, at 344
21. Gómez, 'The Interaction between the Political Actors of the OAS, the Commission and the Court', in D. Harris and S. Livingstone (eds), The Inter-American System of Human Rights (1998), at 173, 196-197.
22. See Pasqualucci, supra note 1, at 346-348.
23. E.g., Annual Report 2006, supra note 11, at 64.
24. One finds such striking annotations as the following: '[t]he European Union was the main source of financing for the seventieth regular session': ibid.. at 6 n. 2.
25. Medina, 'Toward Effectiveness in the Protection of Human Rights in the Americas', 8 Transnat'l L & Contemporary Problems (1998) 337, at 353.
26. Several years later, the critical dialogue within the OAS continues to generate such observations as that 'there can be no talk of increasing the resources ofthe system's organs without first implementing necessary mechanisms to avoid abuse of the protection offered by the system', and that the OAS should 'devote less time to finding those responsible for violations and more time to educating the youth to prevent human rights violations from occurring': OAS Permanent Council, Committee on Juridical and Political Affairs, Dialogue on the Workings of the Inter-American Human Rights System Among Member States and the Members of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Report on the Meeting, OEA/Ser.G/CP/CAJP-2311/ 05 add. 2 (15 May 2006), at 5.
27. See, e.g., J. Donnelly, Universal Human Rights in Theory and Practice (2nd edn, 2003) at 141
28. Weston et al., 'Regional Human Rights Regimes: A Comparison and Appraisal', 20 Vanderbilt J Transnat'l L (1987) 585, at 589-590.
29. ACHR Arts. 14, 21. On the other hand, the American Convention omitted the minority rights provision of ICCPR Art. 27.
30. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-American Court of Human Rights, Series A, No. 16 (1999), at paras 114-115
31. (citing, inter alia, Tyrer v United Kingdom, ECHR (1978) Series A, No. 26).
32. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Advisory Opinion OC-2/82, Inter-American Court of Human Rights, Series A, No. 2 (1982), at paras 29-31
33. (citing App No. 788/60, Austria v. Italy, 4 YB (1961) 116 (European Commission)).
34. The Word 'Laws' in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86, Inter-American Court of Human Rights, Series A, No. 6 (1986), at paras 19-21.
35. See, e.g., The Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Advisory Opinion OC-2/82, Inter-American Court of Human Rights, Series A, No. 2 (1982), at paras 23-25 (drawing on travaux to construe ACHR Art. 75 on reservations); Baena Ricardo Case (Competence), Inter-American Court of Human Rights, Series C, No. 104 (2003), at para. 89 (drawing on travaux to construe ACHR Art. 65 with regard to post-judgment procedures); but see YATAMA Case, Inter-American Court of Human Rights, Series C, No. 127 (2005) (separate opinion of Judge Jackman) (drawing on travaux to construe ACHR Art. 23 as protecting the candidacy of individuals not affiliated with any political party).
36. See, e.g., Maritza Urrutia Case, Inter-American Court of Human Rights, Series C, No. 103 (2003), at para. 91 (construing ACHR Art. 5 in light of the Inter-American Convention to Prevent and Punish Torture, OAS Treaty Series No. 67 (1985), 25 ILM (1986) 519, as well as global norms).
37. Inter-American Democratic Charter, 11 Sept. 2001, OAS Doc. OEA/Ser.P/AG/ RES.1 (XXVIII-E/01), 40 ILM (2001) 1289.
38. The Charter is a resolution of the General Assembly of the OAS, setting forth principles of democracy and a framework for political action by the OAS when the democratic order of a member state is at risk or unconstitutionally interrupted: See Rudy, 'A Quick Look at the Inter-American Democratic Charter of the OAS: What Is It and Is It "Legal"?', 33 Syracuse J Int'l L and Commerce (2005) 237. For use ofthe Charter by the Inter-American Court see, e.g., Herrera-Ulloa Case, Inter-American Court of Human Rights, Series C, No. 107 (2004), at para. 115; YATAMA Case, Inter-American Court of Human Rights, Series C, No. 127 (2005), at paras 193, 207, 215 and the separate opinion of Judge García-Sayán, at paras 15-17 (emphasizing the effect of the Charter on evolutive interpretation of political rights).
39. Claude Reyes Case, Inter-American Court of Human Rights, Series C No. 151, at paras 78-79 (citing a 2006 resolution of the OAS General Assembly urging states to 'respect and promote respect for everyone's access to public information', as well as more general provisions on transparency and participation in the Democratic Charter).
40. This attitude does not inevitably follow from the respective roles of the Court and the Commission, and may be a legacy of earlier tensions in their relationship. The European Court was more openly attentive to the case law of the European Commission: See J.G. Merrills, The Development of International Law by the European Court of Human Rights (1993), at 15-16.
41. Velásquez Rodríguez Case, Inter-American Court of Human Rights, Series C, No. 4 (1988).
42. Villagrán Morales Case, Inter-American Court of Human Rights, Series C, No. 63 (1999), at paras 225-227.
43. See Tittemore, 'Ending Impunity in the Americas: The Role of the Inter-American Human Rights System in Advancing Accountability for Serious Crimes under International Law', 12 Southwestern J L and Trade in the Americas (2006) 429.
44. Compare, e.g., Barrios Altos Case, Inter-American Court of Human Rights, Series C, No. 75 (2001), at para. 41 ('This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations), with ibid. at para. 44 ('Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect...).
45. See Almonacid-Arellano Case, Inter-American Court of Human Rights, Series C, No. 154 (2006), at para. 121 ('To conclude, the Court, rather than the process of adoption and the authority issuing [the Chilean self-amnesty], addresses the ratio legis: Granting an amnesty for the serious criminal acts contrary to international law that were committed by the military regime').
46. Bulacio Case, Inter-American Court of Human Rights, Series C, No. 100 (2003), at para. 116. The Court cannot really mean, however, that every human rights violation requires criminal sanctions for the individuals who can be identified as responsible. The range of positive and negative duties implied from the Convention is too wide to justify such a generalization. And, in fact, the Court does not order investigation and punishment of individual actors in every case: See, e.g., Herrera-Ulloa Case, Inter-American Court of Human Rights, Series C, No. 107 (2004), at para. 207 (defamation case against journalist); YATAMA Case, Inter-American Court of Human Rights, Series C, No. 127 (2005), at para. 275 (electoral restrictions).
47. Palamara Iribarne Case, Inter-American Court of Human Rights, Series C, No. 135 (2005).
48. Las Palmeras Case, Inter-American Court of Human Rights, Series C, No. 90 (2001).
49. See, e.g., Last Temptation of Christ Case, Inter-American Court of Human Rights, Series C, No. 73 (2001), at para. 69 and n. 18 (re freedom of expression) (citing Handyside v. United Kingdom, ECHR Series A, No. 24 (1976), and later cases); Five Pensioners Case, Inter-American Court of Human Rights, Series C, No. 98 (2003), at para. 103 and n. 50 (re pension benefits as property) (citing Case 39/1995/545/ 631, Gaygusuz v. Austria, 1996-IV ECHR 1129).
50. See, e.g., Lori Berenson Mejía Case, Inter-American Court of Human Rights, Series C, No. 119 (2004), at paras 159-161 (quoting the European Court for the proposition that the presumption of innocence can be violated by statements made by the police to the media asserting a defendant's guilt before trial).
51. See, e.g., Ricardo Canese Case, Inter-American Court of Human Rights, Series C, No. 111 (2004), at paras. 115-135 (relying on HRC General Comment 27); Velásquez Rodriguez Case (Compensatory Damages), Inter-American Court of Human Rights, Series C, No. 7(1989), at para. 28 (citing HRC views); YATAMA Case, Inter-American Court of Human Rights, Series C, No. 127 (2005), at para. 208 (quoting from HRC General Comment 25); Raxcacó Reyes Case, Inter-American Court of Human Rights, Series C, No. 133 (2005), at para. 69 and n. 47 (citing HRC Concluding Observations on reports ofIran and Iraq).
52. M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, 2005), at p.xxvii, 894.
53. See Herrera-Ulloa Case, Inter-American Court of Human Rights, Series C, No. 107 (2004), at paras 166-167 and n. 117. Although the Court did not mention the fact, this interpretation diverges from that of the corresponding provision in the Seventh Protocol to the ECHR, which postdates the ACHR: See Nowak, supra note 44, at 348-352; App. No. 29731/96, Krombach v. France, 2001-II ECHR 35, at 64, para. 96.
54. E/CN.4/1998/53/Add.2 (1998).
55. Moiwana Village Case, Inter-American Court of Human Rights, Series C, No. 124 (2005), at paras 111, 120. This portion of the opinion also referred to generalities in the Human Rights Committee's General Comment 27 (in para. 110) and to a somewhat analogous decision on an individual communication, Jiménez Vaca v. Colombia, UN Human Rights Committee, Communication No. 859/1999, UN Doc CCPR/C/74/D/859/1999 (2002) (in para. 116).
56. Adoptedby GA Res. 43/173, 9 Dec. 1988.
57. Tibi Case, Inter-American Court of Human Rights, Series C, No. 114 (2004), at para. 154. The Court also quoted for this principle (para. 155) a passage from App. No. 30210/96 Kudla v. Poland, 2000-XI ECHR 197 (Grand Chamber) (finding no violation of the right).
58. UN Doc E/ST/CSDHA/.12 (1991).
59. Juan Humberto Sanchez Case, Inter-American Court of Human Rights, Series C, No. 99 (2003), at para. 127; see also ibid., at para. 128 n. 144 (referring to a Council of Europe recommendation onthe harmonization of rules for forensic medical autopsy).
60. See Ximenes-Lopes Case, Inter-American Court of Human Rights, Series C, No. 149 (2006), at paras 130 and n. 117, 133 and n. 118, 135 and n. 120 (citing standards adopted by the World Psychiatric Association, the American Hospital Association, the American Geriatrics Society, and the American Medical Association).
61. See J. Alvarez, International Organizations as Law-makers (2005), at 504 ('In some cases, [adjudicative entities] are the principal vehicle by which soft law hardens').
62. For fuller discussion see Neuman, 'Human Rights and Constitutional Rights: Harmony and Dissonance', 55 Stanford L Rev (2003) 1863.
63. ACHR Preamble, para. 2 (Recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states').
64. 'Other Treaties' Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-American Court of Human Rights, Series A, No. 1 (1982), at para. 41.
65. Mapiripán Massacre Case, Inter-American Court of Human Rights, Series C, No. 134 (2005), at para. 188. How this understanding of Art. 29(b) arose is unclear - at first glance, its language seems to be merely a version of the standard savings clause contained in many human rights treaties, indicating that the treaty defines a minimum, not a maximum, of protection for human rights: See, e.g., ECHR Art. 60. The early commentary on the ACHR also described Art. 29(b) in savings clause terms. See, e.g., Cançado Trindade, 'Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)', [1987-11] RdC 11, at 115-117;
66. Gros Espiell, 'Los Metodos de Interpretación Utilizados por la Corte Interamericana de Derechos Humanos en su Jurisprudencia Contenciosa', in R. Nieto Navia, La Corte y el Sistema Interamericanos de Derechos Humanos (1994), at 223, 228.
67. The same could be said about reliance on Art. 31(3)(c) of the Vienna Convention on the Law of Treaties as a basis for actual or constructive consent of the parties to the ACHR. That provision requires interpreters to take into account 'relevant rules of international law applicable in the relations between the parties'. It is doubtful whether the pertinent category of 'rules' includes soft law instruments, and it is clear that European regional norms are not 'applicable' within the OAS: See McLachlan, 'The Principle of Systematic Integration and Article 31(3)(c) of the Vienna Convention', 54 Int'l Comp LQ (2005) 279, at 290-291.
68. 'Other Treaties' Subject to the Advisory Jurisdiction of the Court (Article 64 American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-American Court of Human Rights, Series A, No. 1 (1982), at para. 40.
69. Herrera-Ulloa Case, Inter-American Court of Human Rights, Series C, No. 107 (2004), at para. 128.
70. Ricardo Canese Case, Inter-American Court of Human Rights, Series C, No. 111 (2004), at paras 98-104.
71. Villagrán Morales Case, Inter-American Court of Human Rights, Series C, No. 63 (1999), at para. 194.
72. Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02, Inter-American Court of Human Rights, Series A, No. 17 (2002). Note that all parties to the ACHR have also ratified the CRC.
73. Moreover, in several footnotes, the Court concentrated its citations on Reports of the Committee on the Rights of the Child relating to particular OAS member states, including both states that had ratified the ACHR and states that had not done so: See, e.g., ibid., at para. 79 n. 84 (Costa Rica, and St Kitts and Nevis, respectively).
74. See, e.g., ibid., at para. 120 (citing UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (1985)).
75. See, e.g., ibid., at para. 111 (citing UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), adopted by GA Res 45/112, 14 Dec. 1990).
76. Inter-American Court of Human Rights, Series C, No. 114 (2004), at para. 211.
77. It might be objected on realist grounds that the states ratified the CRC taking into account its weak enforcement mechanisms, without the intention of subjecting their compliance to binding adjudication before the Inter-American Court. But that is a risk that they took, in light of Art. 19 and the interpretive practices of the Court.
78. Consideration of the CRC in construing Art. 19 may be directly justifia ble under Art. 31(3)(c) of the Vienna Convention on the Law of Treaties; that does not mean that any given provision ofthe CRC automatically amounts to a 'measure of protection required' under ACHR Art. 19.
79. Ituango Massacres Case, Inter-American Court of Human Rights, Series C, No. 148 (2006), at para. 157 n. 177; Yakye Axa Indigenous Community Case, Inter-American Court of Human Rights, Series C, No. 125 (2005), at para. 67; Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, Series A, No. 18 (2003), at para. 120.
80. Nor does it ensure that borrowed interpretations are justified in suprapositive terms, given that the conclusions of an expert body or the products of a European regional consensus need not be normatively correct.
81. See, e.g., Caesar Case, Inter-American Court of Human Rights, Series C, No. 123 (2005) (separate opinion of Judge Cançado Trindade), at para. 64.
82. Again, the American Convention includes some rights omitted in the ICCPR (e.g., the right to property) and omits or modifies other rights that the ICCPR includes (e.g. ICCPR Art. 27 on minority rights); the sketchy treatment of economic and social rights in ACHR Art. 26 was followed by a Protocol that contemplates only a limited role for the Court: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (adopted 17 Nov. 1988, entered into force 16 Nov. 1999) OAS Treaty Series No. 69 (1988), 28 ILM (1989) 156.
83. The Inter-American Court has expressed this view. See, e.g., Herrera-Ulloa Case, Inter-American Court of Human Rights, Series C, No. 107 (2004), at para. 161.
84. Compare supra the text to notes 34-40.
85. Cf. Viljoen and Louw, 'Compliance with the Recommendations of the African Commission on Human and Peoples' Rights', 101 AJIL (2007) 1, at 16 (concluding empirically that compliance with the African Commission's recommendations does not correlate with the 'depth and width' of the reasoning supporting them).
86. See supra the text to notes 33-40.
87. To some degree, the desire of the Court to innovate is in tension with the objective of coordinating states' regional obligations with their global obligations, but if the Court is successful in exporting an interpretation the congruence can be restored.
88. See, e.g., Fermín Ramírez Case, Inter-American Court of Human Rights, Series C, No. 126 (2005) (separate opinion of Judge García Ramírez) ('This affirmation, originally made by the Inter-American Court in the OC-16, was later collected in the solution of cases before the International Court of Justice....').
89. The references are to The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-American Court of Human Rights, Series A, No. 16 (1999)
90. LaGrand Case (Germany v. United States) [2001] ICJ Rep 466
91. and Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) [2004] ICJ Rep 12.
92. The ICJ did not confirm or deny the Inter-American Court's characterization of this right to information as a human right: ibid. at 61.
93. When the Inter-American Court subsequently found a violation of this right in a contentious case, a concurring opinion emphasized the 'truly pioneering Advisory Opinion No. 16,... [which] has acted as a source of inspiration for international jurisprudence in statu nascendi regarding this matter, - as has been acknowledged in great length by contemporary judicial doctrine': Acosta Calderon Case, Inter-American Court of Human Rights, Series C, No. 129 (2005) (separate opinion of Judge Cançado Trindade), at para. 14.
94. Yakye Axa Indigenous Community Case, Inter-American Court of Human Rights, Series C, No. 125 (2005) (separate opinion of Judge Abreu Burelli), at para. 6.
95. On the 'life project', understood as an individual's chosen vision of complete personal achievement, which may be disrupted or destroyed by human rights violations, see Gutiérrez Soler Case, Inter-American Court of Human Rights, Series C, No. 132 (2005) (separate opinion of Judge Cançado Trindade), at paras 2-7
96. but see ibid. (separate opinion of Judge Jackman) (criticizing the concept).
97. Moiwana Village Case, Inter-American Court of Human Rights, Series C, No. 125 (2005) (separate opinion of Judge Cançado Trindade), at para. 10 ('the unprecedented decision (the first pronouncement of the kind by an international tribunal)... which safeguarded the right to communal property of their lands'), at para. 12 (International Human Rights Law in general, and this Court in particular, have contributed to such development').
98. Caesar Case, Inter-American Court of Human Rights, Series C, No. 123 (2005) (separate opinion of Judge Cançado Trindade), at para. 7.
99. Aloeboetoe Case (Reparations), Inter-American Court of Human Rights, Series C, No. 15 (1993), at para. 57.
100. Goiburú Case, Inter-American Court of Human Rights, Series C, No. 153 (2006), at paras 128-132, 166
101. Gómez Paquiyauri Brothers Case, Inter-American Court of Human Rights, Series C, No. 110 (2004), at para. 76.
102. See infra the text to note 100.
103. Aloeboetoe Case (Reparations), Inter-American Court of Human Rights, Series C, No. 15 (1993), at para. 57.
104. Maritza Urrutia Case, Inter-American Court of Human Rights, Series C, No. 103 (2003), at para. 92.
105. Goiburú Case, Inter-American Court of Human Rights, Series C, No. 153 (2006), at para 93.
106. Gómez Paquiyauri Brothers Case, Inter-American Court of Human Rights, Series C, No. 110 (2004), at para. 76.
107. Ximenes-Lopes Case, Inter-American Court of Human Rights, Series C, No. 149 (2006), at para. 126
108. Caesar Case, Inter-American Court of Human Rights, Series C, No. 123 (2005), at para. 70.
109. Note that versions of these first 5 items were described as jus cogens human rights norms in the 1987 Restatement of US foreign relations law: See Restatement (Third) of the Foreign Relations Law of the United States (1987), ii, at para. 702 and comment n (at 163 and 167 respectively).
110. YATAMA Case, Inter-American Court of Human Rights, Series C, No. 127 (2005), at para 184
111. Almonacid-Arellano Case, Inter-American Court of Human Rights, Series C, No. 154 (2006), at para. 99.
112. Ibid., at para. 153.
113. Goiburú Case, Inter-American Court of Human Rights, Series C, No. 153 (2006), at para. 131.
114. Ximenes-Lopes Case, Inter-American Court of Human Rights, Series C, No. 149 (2006) (separate opinion of Judge Cançado Trindade), at paras 19-21.
115. Serrano Cruz Sisters Case (Preliminary Exceptions), Inter-American Court of Human Rights, Series C, No. 118 (2004) (separate opinion of Judge Cançado Trindade), at para. 40 (citing Common Art. 3 of the 1949 Geneva Conventions, Art. 75 of Additional Protocol I, and Arts 4-6 of Additional Protocol II).
116. Plan de Sanchez Massacre Case, Inter-American Court of Human Rights, Series C, No. 105 (2004) (separate opinion of Judge Cançado Trindade), at para. 30.
117. Caesar Case, Inter-American Court of Human Rights, Series C, No. 123 (2005) (separate opinion of Judge Cançado Trindade), at para. 92.
118. Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, Series A, No. 18 (2003) (hereinafter OC-18).
119. Ibid., at paras 1-4.
120. Cleveland, 'International Decisions', 99 AJIL (2005) 460
121. see Hoffman Plastic Compounds v. NLRB, 535 US 127 (2002).
122. OC-18, supra note 98, at para. 84 (distinción y discriminación).
123. Ibid. (emphasis added) ('que redunde en detrimento de los derechos humanos').
124. Somehow in this clarification the Court omitted the factor of proportionality from the definition of 'discrimination', but it returned later as if synonymous: ibid., at paras 91, 119, 168. The relevant concept of discrimination that 'adversely affects' human rights is extremely broad, as illustrated by the fact that the Court considered all rights arising in the employment relationship, whether internationally protected or defined by domestic law or collective bargaining agreements, as 'labor rights' that the employer must be prevented from disproportionately infringing with respect to undocumented workers.
125. Ibid., at para. 83.
126. Ibid., at para. 86 n. 33.
127. Ibid., at para. 101.
128. Ibid., at para. 100.
129. Ibid.
130. Ibid., at para. 103.
131. Ibid., at para. 104.
132. Ibid., at para. 140.
133. Ibid., at para. 149.
134. One could also inquire whether a peremptory norm of this scope would be justified pragmatically on institutional grounds. I leave that complex inquiry for another day. Another possible explanation for the jus cogens character of the general norm of non-discrimination might be that all human rights norms are peremptory, ipso facto. But the Court did not put forward this argument, and I will not pursue it here.
135. App. No. 27824/95, Posti and Rahto v. Finland, 2002-VII ECHR 301.
136. Acosta Calderon Case, Inter-American Court of Human Rights, Series C No. 129 (2005) (separate opinion of Judge Cancado Trindade), at paras 2-9 (objecting to the Court's failure to find that a procedural rule distinguishing between defendants accused of drug trafficking and other defendants violated the principle of non-discrimination).
137. OC-18, supra note 98, at para. 101.
138. Ibid., at para. 100 (quoting from prior Advisory Opinions).
139. ICESCR Art. 2 (3); see M.C.R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (1995), at 172-174
140. Dankwa, 'Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights', 9 Human Rts Q (1987) 230.
141. See ACHR Art. 22(1), limiting the right to 'move about' and to reside in state territory to those lawfully present; ACHR Art. 22 (6), providing the right to a decision reached in accordance with law before expulsion, only for aliens lawfully present. Does ACHR Art. 22 violate a jus cogens norm, and if so what are the consequences?
142. OC-18, supra note 98, at para. 140.
143. E.g., the right to political participation does not yet entail that all private organizations must be governed democratically, and the right to personal liberty does not yet require parents to bring their children before a judge when confining them to their rooms.
144. Ibid., at para. 145.
145. The Human Rights Committee's interpretation of ICCPR Art. 26 as requiring states to protect individuals against some forms of private discrimination reflects the separate mandate in the second sentence of that provision, to 'guarantee to all persons equal and effective protection against discrimination'. See Nowak, supra note 44, at 630-634.
146. It might be of historical interest to observe that, in the course of the negotiation of the ACHR, a similar mandate was expressly deleted from
147. OC-18, supra note 98, at para. 144.
148. E.g., Yean and Bosico Children Case, Inter-American Court of Human Rights, Series C, No. 130 (2005) (separate opinion of Judge Cançado Trindade), at para. 22 ('I would greatly regret it if, in future (tempus fugit), the Court moved away from this case law'; La Cantuta Case, Inter-American Court of Human Rights, Series C, No. 162 (2006) (separate opinion of Judge Cancado Trindade), at para. 61 ('this Court cannot let itself stop or regress its own jurisprudence regarding imperative law (jus cogens) within the scope of protection of the human being, regarding both substantive and procedural law').