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Home Human Rights Archive for category "American Convention on Human Rights"

Inter-American Court of Human Rights condemns Venezuelan regime’s political persecution against the opposition in the San Miguel Sosa and others case

Published on June 25, 2018        Author: 
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The Inter-American Court of Human Rights (hereinafter, IACtHR) published a recent decision (only available in Spanish) in the San Miguel Sosa and others vs. Venezuela case, by means of which it rebuts frequent arguments relied on by the Chavista[d1] –i.e. based on the ideas of former president Hugo Chávez— regime of Nicolás Maduro that label external and foreign criticism against its policies, frequently seen as abusive against political dissidents and others as contrary to human rights, as forms of intervention in its domestic affairs. This post translates relevant excerpts of the judgment on merits and reparations, and introduces some observations on the right to political participation under the American Convention on Human Rights.

The case was about the termination of contracts of persons who worked with the state of Venezuela soon after they participated in an initiative that sought to call for the celebration of a referendum on the termination of the mandate of then-president Hugo Chávez (para. 1). The list of those who signed in support of the referendum had been transmitted by the National Election Council (Consejo Nacional Electoral) to a ‘chavista’ member of parliament, Tascón (para. 131). Several state agents had told the applicants that the termination of their contract was the result of their disloyalty (paras. 137-139). While the defendant state argued that the contracts were terminated in order to lower costs and personnel (para. 140), the Court considered that this was not demonstrated. In this sense, it argued that the mere invocation of “convenience or reorganization, without providing more explanations” made the state arguments seem weak and lack precision “in relation to motivation”, supporting the “strength of circumstantial evidence” about actions that were actually meant to target lawful political and legitimate opposition action of some persons. Thus, the IACtHR concluded that there was a “reprisal against them for having legitimately exercised a political right enshrined in the Constitution, i.e. signing their support of the call for a referendum on the revocation of presidential mandate. The Court added, hence, that “the termination of the contracts was a “deviation of power” (para. 150), which exists when “there is a motivation or purpose that differs from that of a norm that confers powers to a state authority, [case in which it can be demonstrated that] the action can be regarded as an arbitrary one” (para. 121).

It is interesting to note that the Inter-American Commission on Human Rights had stated that the state of Venezuela’s assertion that the alleged victims had to fully demonstrate a nexus between an alleged discriminatory treatment and the authorities’ decisions would imply placing an excessive and absolute burden of proof on the applicants without the state having exhausted all the measures at its disposal to find out the truth, considering the complexity of the issue (para. 174). The Court, in turn, considered that while the termination of contracts was permitted by the legal system, it is possible to rebut a presumption that authorities acted in good faith (para. 122), as the Court found in this case based on circumstantial evidence (supra) flowing from evidence on the “Tascón list”, testimonies on conversations with state agents, statements of the president of Venezuela, and other elements that made the Court consider that “the termination of contracts took place in a context of high instability, political polarization and intolerance towards dissent, which could encourage forms of persecution or discrimination […] made possible by acts and declarations of members of the Executive and Legislative Powers, as well as of the competent electoral authority”, there having been no adequate state “precise and detailed explanation as to the motivation of its decision. In cases as the present one, the mere invocation of convenience or reorganization, without providing further explanations, is not sufficient, because the weakness of precisions as to motivation reinforces the likelihood of contrary circumstantial evidence […] Reason why the Court concluded that the termination of contracts was a form of deviation of power, which used [a] clause as a veil of legality to conceal the actual motivation or real purpose: a reprisal […] for having legitimately exercised a political right” (paras. 124-150).

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The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?

Published on February 27, 2018        Author: 
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On 9th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.

The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:

  1. Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
  2. If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
  3. According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
  4. Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
  5. If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?

In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. Read the rest of this entry…

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The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights

Published on February 26, 2018        Author:  and
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The Inter-American Court’s Advisory Opinion on Environment and Human Rights, released on 7 February 2018 (in Spanish only) (for brevity “AO”), is the latest and potentially most significant decision in a series of high profile international judicial rulings which acknowledge legal consequences for environmental harm. As recently as 2 February 2018, the International Court of Justice in the conjoined Costa Rica v. Nicaragua / Nicaragua v. Costa Rica cases ordered Nicaragua to pay compensation to Costa Rica for environmental damage, its first ever order for such compensation. Earlier, the ITLOS issued a landmark provisional measures order in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case 23), prescribing provisional measures protecting the marine environment, inter alia suspending all ongoing oil exploration and exploitation operations in a disputed area. To that list one could add the 2017 decision of an ICSID tribunal in Burlington Resources, Inc. v. Republic of Ecuador to award some US$39 million in damages in favour of Ecuador for environmental remediation costs.

The AO (summarized in EJIL: Talk! here) focuses on State obligations under international environmental law and human rights law in the transboundary context, in particular as concerns the construction and operation of infrastructure mega-projects, petroleum exploration and exploitation, maritime transportation of hydrocarbons, construction and enlargement of ports and shipping canals, and so on. 

The AO is ground-breaking in several respects. It is the IACtHR’s first pronouncement on State obligations concerning environmental protection under the ACHR (§ 46). Indeed, it is the first ruling ever by an international human rights court that truly examines environmental law as a systemic whole, as distinct from isolated examples of environmental harm analogous to private law nuisance claims (e.g. Lopez-Ostra v. Spain in the ECtHR). Perhaps most importantly, it is a landmark in the evolving jurisprudence on ‘diagonal’ human rights obligations, i.e. obligations capable of being invoked by individual or groups against States other than their own. The AO opens a door – albeit in a cautious and pragmatic way – to cross-border human rights claims arising from transboundary environmental impacts. Read the rest of this entry…

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Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights

Published on February 26, 2018        Author:  and
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On 7 February 2018, the Inter-American Court of Human Rights (the Court, IACtHR) issued the much awaited advisory opinion (A/O) concerning the obligations of States Parties to the American Convention on Human Rights (American Convention, ACHR) in respect of infrastructural works creating a risk of significant environmental damage to the marine environment of the Wider Caribbean Region.

This entry sets out the main findings of the Court, including its approach to the extraterritorial application of the American Convention. With the text of the A/O currently available in Spanish only (here), this post seeks to provide an annotated summary of the A/O to EJIL:Talk!’s readership in the English speaking international law world.

The reformulated scope of the advisory opinion

Colombia, the requesting state, asked for the A/O to be limited to the jurisdictional area established by the 1984 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention).

Colombia’s original, complex and prolix request originally read as follows:

“I. In accordance with Article 1.1 of the [American Convention], should it be considered that a person, although not located within the territory of a State party, is subject to its jurisdiction where the following four conditions are cumulatively met?

1) the person is present or resides in an area defined and protected by a conventional regime for the protection of the environment to which the relevant State is a party; 2) that the said regime establishes an area of functional jurisdiction, for example, as envisaged in the [Cartagena Convention]; 3) that in the said jurisdictional area the States parties have the obligation to prevent, reduce and control pollution through a series of general and/or specific obligations; 4) that as a result of the environmental damage or risk of environmental damage in the area protected by the relevant treaty, which is attributable to the State who is party to both that treaty and to the [American Convention], the human rights of the affected person had been breached or are in risk being breached. Read the rest of this entry…

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Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean

Published on February 14, 2018        Author: 
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On 2 February 2018, the International Court of Justice issued a landmark judgment on compensation for environmental damages in Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Owed by the Republic of Nicaragua to the Republic of Costa RicaThe ICJ’s decision was followed shortly thereafter on 9 February 2018 by a significant Advisory Opinion of the Inter-American Court of Human Rights (IACtHR), declaring the fundamental importance of the right to a healthy environment to human existence and States’ corollary obligations to protect human rights through marine environmental protection in the Greater Caribbean region (summary report of the Advisory Opinion in English found here, while the full text of Colombia’s request for advisory opinion on this question can be found here). The 2 February 2018 ICJ Compensation Judgment follows its 16 December 2015 Judgment declaring Nicaragua liable for activities in Costa Rican territory, such as the excavation of three caños and establishment of military presence in said territory (see my previous comments on evidentiary approaches in this 2015 Merits Judgment here.)

While both the 2 February 2018 ICJ judgment on compensation and the 9 February 2018 IACtHR Advisory Opinion signify the central importance of international environmental norms to international human rights law, the methodological approaches taken by the World Court and the regional human rights court for Latin America reveal some sharp differences between these tribunals.  In adjudging compensation for environmental damages caused by Nicaragua to Costa Rica, the ICJ took a rather ‘incrementalist’ approach to quantification and empirical proof for every head of damage asserted – a methodologically ambiguous and context-sensitive approach which is not easily replicable for future environmental cases, given the complex nature of environmental damages in any given dispute.  The ICJ did not adopt Costa Rica’s theory of an “ecosystem approach” to damage assessment, and neither did it adopt Nicaragua’s position that “replacement costs” be used to estimate environmental damages.  Unlike the IACtHR Advisory Opinion’s broad acceptance of States’ continuing individual obligations towards preventing transboundary harm that could ensue from infrastructure projects in the Greater Caribbean, the ICJ Judgment carefully reduced Costa Rica’s claim of compensation by delineating between Nicaragua’s compensatory duties as part of environmental reparations, and Costa Rica’s own environmental mitigation duties in the presence of foreseeable environmental damage.  These recent developments suggest that, while it is recognized that all States share responsibilities towards environmental protection especially under the precautionary principle, the precise allocation of environmental reparations owed through compensation will not always lie strictly on the side of the State that is the environmental tortfeasor, at least where the ICJ is concerned.

The following subsections summarize the 2 February 2018 ICJ Judgment reasoning on compensation, the 9 February 2018 IACtHR Advisory Opinion, and conclude with some comments on methodologies used for damages assessment and environmental reparations, especially in the thorny form of lump-sum upfront compensation for environmental damage impacting present and future generations.

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A Critical Assessment of Colombia’s Advisory Request before the IACtHR – and Why It Should Be Rejected

Published on October 25, 2016        Author: 
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On 14 March 2016 Colombia filed an Advisory Opinion request before the Inter-American Court of Human Rights (IACtHR). The request poses three questions, which can be summarised as follows: The first question asks whether the American Convention on Human Rights (ACHR) entails extra-territorial obligations for a State when interpreted in light of a “treaty-based environmental protection system to which that State is a party [also],” and if it does, what are its incidences vis-à-vis the elements of state responsibility (attribution and breach).

The second question is a restatement of the first one, but zeroes in on conduct of states that might do “serious damage to the marine environment” and the implications thereof for inhabitants of “the coast and/or islands of another State party” under articles 4(1) (right to life) and 5(1) (personal integrity) ACHR; in other words, the question enquires whether, and if so how, IHRL might serve as vehicle for the extra-territorial application of IEL.

Building upon the ICJ’s environmental law developments in Pulp Mills, a final question enquires whether environmental obligations under articles 4(1) and 5(1) ACHR entail the duty to conduct environmental impact assessments (EIA). Read the rest of this entry…

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 
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Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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Venezuela denounces American Convention on Human Rights

Published on September 12, 2012        Author: 
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The Bolivarian Republic of Venezuela has given notice of its intention to withdraw in a year’s time from the leading regional human rights treaty in the Americas, with the Secretary-General of the Organization of American States (OAS) having confirmed receipt of the notice of denunciation here: http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-307/12. (Rumours back in July had suggested that Venezuela was considering withdrawal.) The Inter-American Commission on Human Rights has also issued a press release announcing that Venezuela is withdrawing from the American Convention on Human Rights, with the denunciation to take effect in September 2013. The IACHR press release can be found here: http://www.oas.org/en/iachr/media_center/PReleases/2012/117.asp

The American Convention on Human Rights (also known as the Pact of San José, Costa Rica) was adopted in 1969 and entered into force in 1978. It is a key regional human rights instrument for the protection of civil and political rights within the Western Hemisphere (with the Convention working alongside the 1948 American Declaration of the Rights and Duties of Man which is relied upon for OAS states that are not Convention parties). Venezuela has been a party to the Convention since ratification in 1977. Venezuela has also recognized the competence of the Inter-American Court of Human Rights since 1981, with Venezuela’s record before the court found here: http://www.corteidh.or.cr/pais.cfm?id_Pais=13.

A broken (but soon to be fixed?) link to the text of Venezuela’s denunciation can be found here:  http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm#Venezuela. The Venezuelan Ministry of Foreign Affairs has posted an interview with the Minister here (in Spanish): http://www.mre.gov.ve/index.php?option=com_content&view=category&layout=blog&id=2&Itemid=325

This is not the first denunciation for the American Convention on Human Rights, with Trinidad and Tobago having denunciated in 1998 due to a stated need to address delays in death penalty cases as a result of the time taken before international human rights bodies. Venezuela is the second state to withdraw from the American Convention on Human Rights, notably at a time when the inter-American human rights system is undertaking consultations with respect to reforms (see earlier post).

Readers will also be aware that Venezuela is not a newcomer to denunciations, having earlier this year denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), becoming the third Latin American state to denounce the ICSID Convention (after Bolivia in 2007 and Ecuador in 2009). Under the terms of the ICSID Convention, which provides for a six-month notice period, Venezuela’s denunciation came into effect in July.

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