Professional Documents
Culture Documents
Metrics To Answer 2019
Metrics To Answer 2019
Metrics To Answer 2019
SYSTEM PROTECTION
OF HUMAN RIGHTS:
SIMILARITIES AND
DIFFERENCES.
I. INTRODUCTION.
As everyone knows, there are three basic mechanisms for protecting human
rights: The national legal systems, the international legal system and regional
legal systems. Among the latter are the European System and the Inter-
American System, which are the subject of our study.
Through this work we seek to highlight some of the similarities and differences
of the two most important regional systems: American and European, through a
brief but thorough examination of its main policy and procedural development.
A central aspect, since we already have in mind is that the context in which
arises the American system is far from the European System. Unlike the
American Convention, the European Convention was drafted and approved,
mostly by liberals and genuine democracies with a strong and independent
judiciary.
Professors Henry Steiner and Phillip Austin 1have observed: "The development
of Inter-American system followed a different path from that of its European
counterpart. Although superficially similar institutional structure and regulatory
requirements are similar in many respects, the conditions under which both
systems were developed radically different. The Council of Europe,
governments military and other authoritarian regimes have been few and short;
while in Latin America were almost the norm, until the changes that began in
the eighties.
1
REVORIO Diaz , Francisco Javier . Jurisprudence of the European Court of Human Rights.
Lima: Editorial Palestra. 2004, pp. 18-20.
The biggest challenges facing the European system are summarized in matters
such as the length of detention before trial or what implications have the right to
privacy. By contrast, cases involving states of emergency have been relatively
few. The European Commission and Court have rarely had to deal with
governments that are entirely indifferent or antagonistic and having very deep
structural problems that lead to systematic and gross violations of human rights
(…). By contrast, states of emergency have been common in Latin America, the
Judiciary of nations has often been extremely weak (…) in the best position of
the government has been ambivalent and at worst, are openly hostile to them. "
On the other hand, when the American Convention was being negotiated in the
mid-sixties, most governments were democratic. By contrast, in 1978 when the
Convention entered into force several countries were ruled by military
governments or weak civilian governments (under the tutelage of the army).
A first question refers to understand why they use the term "system" reviewed
for the protection of human rights, and a second point is to establish precisely -
at least briefly - what is meant by "Human Rights"; more although usually similar
to terms such as "Fundamental Rights".
We believe that the uses of the term “system” - in the case either European or
American - are based that both normative and organisational aspects must be
intrinsically linked. In this sense, the dictionary of the Royal Spanish Academy
(RBA)2 has established that a "system" is a set of rules or principles on a matter
rationally linked together.
2
Information obtained from the Website: http://buscon.rae.es/draeI/. Question: 24/06/08.
3
Castillo Córdova, Luis. The constitutional rights. Elements for a general theory. Lima: Palestra
Publishers. 2005; P. 38.
practice. This situation makes them less expressions with ideologies that initially
studied and (…) more neutral. "
In this regard, Perez Luño4 said that "the focus has been on the propensity of
doctrine and policy to reserve the term fundamental rights to designate the
rights positivization domestically, while the formula human rights would be the
most common call for the natural rights positivization in international
declarations and conventions”
3.1 Source:
Broadly speaking, the common origin - as both the European system of inter-
American system - what we find in the United Nations (UN), who in 1948
proclaimed the Universal Declaration of Human Rights. This tool collects
considered basic human rights (civil, economic, social, political and cultural).
4
Pérez Luño, Antonio. Human rights, rule of law and constitution. Seventh Edition. Madrid:
Editorial Tecnos. 2001; P. 44.
5
The Council of Europe, established in 1949, is a political intergovernmental organization with
its permanent headquarters in Strasbourg (France). It consists of: Committee of Ministers,
Parliamentary Assembly, Congress of Local and Regional Authorities of the Council of Europe,
European Court of Human Rights and Secretary-General.
6
At the Congress of Europe, held in The Hague in May 1948, the idea came at the initiative of
the International Committee of the Movement for European Unity, to establish a European
Convention on Human Rights, which would be enforced by a court.
1953. The official name of the Convention is "to the European Convention on
Human Rights and Fundamental Freedoms" and aims to protect human rights
and fundamental freedoms, allowing judicial control of respect for those
individual rights. For its part, called the American system (comprised of member
countries of the Organization of American States), took as its starting point the
Organization of American States (OAS) and the American Declaration of Rights
and Duties of Man (1948), text which, curiously little was taken even before the
Universal Declaration of Human Rights. Years later, in 1969, adopted the
American Convention on Human Rights, which is intended, as the Preamble,
"consolidate on this continent, within the framework of democratic institutions, a
system of personal liberty and justice social founded on respect for the essential
rights of man.”7
The techniques and especially the supervisory bodies are based on the
declaratory holding initially international documents, and thus fulfilling its
content was subject to the will of States. This led to emerge supervisory bodies
as the European Court once and the current Inter-American Court of Human
Rights.
Initially, the European system and the Inter-American shared similar supervisory
bodies, namely: A Commission and Court. And, additionally, in the European
case, it had a Committee of Ministers (the first two were created in the
Convention itself, the third being an organ of the Council of Europe set out in its
statute). However, with the consolidation of the Protocol No. 11, was eliminated
the European Commission, focusing all the attention in the European Court of
Human Rights.
7
Information obtained from the Website: http://www.oas.org/Juridical/spanish/treaties/b-32.html.
Question: 24/06/08
European Convention, the American Convention incorporated into a single
instrument the rights guaranteed both as a means of protecting them.
In the European case, have special meaning Protocols No. 8 and 11. The first
of these came into force in January 1990 and helped to improve the working
capacity of the Court, and above all, of the Commission. With regard to the
Commission, allowed that in her womb, constitute Salas-responsible for
resolving cases not present particular difficulties-and-three-member committees
for the rejection, unanimously, of individual claims which could be inadmissible
or manifestly be removed from the list of pending cases.
The above is important because there are also a difference between the role of
the European Commission and the Inter-American Commission. While the first -
under the said Protocol - could solve certain cases, the second was only
empowered to conduct investigations. In this context, is used to assert that the
powers of investigation and research of the Inter-American Commission are
less effective in practice than those of similar body Europe, as, on the one
hand, does not have the technical tools to perform such delicate work , And on
the other hand, does not count in all cases with the cooperation of States
applicants, conduct that although it has changed slowly, particularly after the
restoration of democratic governments in many member countries have not yet
achieved level of collaboration of European regime. Unfortunately, this is a
situation that is still in force, and that will be discussed later.
It is true that a system with two instances (Commission and Court) enable
significant cases could be seen twice. However, supporters of the merger were
alleging that the important thing was to seek the speed of the process. Posture
apparently has finally prevailed.
The Inter-American Commission has also begun to set the tone for a new phase
in the discourse of international human rights with regard to women. In contrast
to the European Court, the Commission, through its decisions, has been
involved in a dialogue taking place between multiple actors in this field (other
international tribunals, NGOs and academics), which is actively involved in
creating a growing body of international jurisprudence on women's rights.
3.3 Procedure:
It must also bear in mind that not all complaints have the same fate, but this will
depend on the three mechanisms for monitoring States' obligations on human
rights:
a) Reports that each state must provide the Commission with the information it
requested on the manner in which their internal law ensures the
implementation of the Convention. Following its analysis, the Commission
can issue recommendations to the State.
Originally, the Convention did not allow individuals to raise a case before the
European Court or before the same act as parties. Only authorized the
respondent State, the State of which the individual is a national introduced a
complaint to the European Commission and the same. However, on the basis of
Article 29.1 of the Rules of Court ° 1959, which allowed delegates from the
European Commission of Human Rights become attend before the European
Court by any person of their choice, in its resolution of April 07 1961, by which
resolved a similar procedural issue raised in the case De Wilde, Ooms and
ersyp (judgement of 18 June 1971) allowed the lawyer for the plaintiffs attend
the Committee during the proceeding before him.
Please note that speaks of standing locus standi rather than jus standi for
individuals, which would leave an incomplete solution. In this sense, Cancado9
has pointed out "the necessary recognition of locus standi in judicio of the
alleged victims (or their representatives) to the Inter-American Court is a
breakthrough of the most important, but not necessarily the final stage of
refinement. From the locus standi, the trend points towards the future
recognition of the right of direct access of individuals to the Court (jus standi) to
bring a case directly before it (…). In the inter-American system of protection,
the right of individual petition will reach its fullness and not the day before the
Inter-American Commission, but directly to the Inter-American Court of Human
Rights”.
In addition, unlike the European system, in the Inter-American system, the way
to expedite the process of protecting human rights, it may submit requests even
by those, who are not victims of violation of a right. This is extremely important
because victims may find it difficult to present a petition, or even ignore the
existence of protection mechanism.
8
Villán Durán, Carla. International Law Course of Human Rights. Madrid: Editorial Trotta. 2002:
P. 545.
9
Cancado Trindade, Alberto. The direct access of individuals to the International Tribunals for
Human Rights. Publications Deusto. 2001: P. 57.
3.5 Enforcement of sentences:
One issue that also unlike the European system of inter refers to the level of
enforcement of sentences issued by the supervisory bodies, being clear, that in
Europe there is a higher percentage of compliance. By contrast, in the Inter-
American system, it appears that there are many states that are working on a
system with the rhetoric, but in practice unknown faults and not give support.
On a more serious challenge openly what some states, eroding its legitimacy.
Peru, for example, threatened to withdraw from the system; Trinidad and
Tobago denounced the American Convention and withdrew the jurisdiction of
the Court, in 1998, following its rejection of failures relating to the administration
of the death penalty. More recently, the Dominican Republic had a serious
conflict by the Court's ruling, while Venezuela has had several serious problems
in the latter role in the failed coup (2003). Thus, if the Inter-American system,
there is an apparent absence of a culture of compliance by the vast majority of
Member States. To reverse this situation, broadly speaking, there is a need for
respect for international law and human rights must be addressed through the
socialization of society as a whole. In extent that these behaviors are
internalized by the people, obviously improve practices. More specifically, it
must carry out reforms of the three branches of government, especially the
Judiciary. In this regard, greater compliance with the decisions of the organs of
SIDH goes through the training of State officials, especially judges, lawyers and
diplomats. Another practice has to do with the promotion and dissemination
system to citizenship, at least to key players such as government officials,
congressmen and members of political parties10.
On the other hand, we must take into account that in the Inter-American system,
there is - in contrast to the European system - a specialized body guarantor of
monitoring and verifying compliance with the judgments of its highest court.
While the Council of Europe has delegated this important role in its Committee
of Ministers control in the Latin American scene is diffuse. According to the
sentiments of the Court itself, the role of verification corresponds both to herself
as the Inter-American Commission, and ultimately to the OAS General
Assembly. In this sense, the judgement of compliance with Baena case11, it
appears that there is a control system not only complicated by the delegation of
responsibilities involved, but also by a lack of persuasive power versus states.
We believe that the effectiveness in carrying out the judgments issued by the
European Court is due not only a cultural issue, but also a regulatory system
that reflects reality. Thus, in the European case, before a case of impossibility of
performance, or when it is not complete, the ECHR awarded a repair
10
Feldmann Pietsch, Andreas. Some strategies to empower the Inter-American System of
Human Rights. In: The Inter-American System of Protection of Human Rights and Andean
Countries. Lima: Andean Commission of Jurists. 2006; pp.41 - 56.
11
Information obtained from the Website: www.acnur.org/biblioteca/pdf/1896.pdf. Question:
26/06/08.
alternative, the so-called "just satisfaction". In addition, "which is within the
exclusive competence of each Member an obligation to enforce decisions of the
Court, namely that it be left to the discretion of each domestic legal system, has
resulted in an enormous variety of solutions under the diversity and disparity
between the positions of each state regarding the degree of effectiveness of the
Convention into its domestic law "12.
12
Romero ROA, Jose Carlos. Enforcement of judgments of the European Court of Human
Rights. In: Notes of Judiciary Law. New York: Council of the Judiciary. 1995; P. 25.
CONCLUSIONS
The differences are appreciated, also at the level of procedure, the most
significant lack of jus standi of the victims of the American Convention
before the Court, unlike the arrangements provided for in Article 34 ° of
the European Convention at its redrafting.
The Inter-American Commission has played a role more promoter of
women's rights, which the European Court.
The Inter-American System, there is - in contrast to the European system - a
specialized body guarantor of monitoring and verifying compliance with the
judgments of its highest court. While the Council of Europe has delegated
this important role in its Committee of Ministers control in the Latin American
scene is diffuse.
United Nations
Website: http://www.un.org/spanish/.