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Corte Interamericana de Derechos Humanos
Boletín No. 113, Año 8, 2015
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Perspectives on the interplay between the Inter-American Court of Human Rights and the International Criminal Court.
Niccoló Pons y Dražan Đukić.
2014
En: Inter-American and European Human Rights Journal.



Resumen: After recalling the importance of the contemporary coexistence of human rights bodies and international criminal tribunals as instruments enforcingfundamental rights, the authors discuss in what manner the Inter-American Court of Human Rights and the International Criminal Court have benefitted from each other's jurisprudence in the interpretation and application of their own legal texts. Subsequently, the authors discuss the future interplay between the two institutions with a view to highlighting the benefits and obstacles associated with such interaction.


Examining Atala-Riffo and daughters v. Chile: The first Inter-American case on sexual orientation, and some of its implications.
Álvaro Paúl.
2014
En: Inter-American and European Human Rights Journal.



Resumen: This article begins by recounting the facts and rulings of Atala-Riffo and Daughters v. Chile, such as the Inter-American Court of Human Rights' interpretation of the right to private and family life, its categorisation of sexual orientation as a social condition that cannot be considered a basis for discrimination, and the limits to the application of the principle of protection of the child's best interest. The article then describes the participation of Karen Atala's daughters in this case, which was one of the most controversial procedural matters of Atala-Riffo and Daughters. After doing so, it engages in an analysis of the scope of this case, for instance, by determining the extent to which it applies to gender identity. The article also refers to the difficulties that may arise when trying to interpret this case in regard to family life, and the relation between morality and privacy. Finally, reference is made to Atala-Riffo and Daughters' position within the wider context of the three major human rights regional systems.


The identification of victims before the Inter- American Court of Human Rights and the International Criminal Court and its impact on participation and reparation: A domino effect?
Diana Contreras-Garduño y Julie Fraser.
2014
En: Inter-American and European Human Rights Journal.



Resumen: This article analyses the evolving position of victims in international law by comparing the identification of victims before the Inter-American Court of Human Rights and the International Criminal Court. The article discusses the concept of victims, the approaches of both Courts to causality requirements between the harm suffered and the violation/crimes alleged, and the recognition of direct and indirect victims. The procedures employed by both Courts to identify victims within their jurisdictions are analysed, highlighting distinctions between the procedures adopted for the purposes of participation as compared to reparation. Conclusions are drawn regarding the evolving and expanding law and practice regarding victim identification and its impact on both Courts.

An affront to the conscience of humanity: Enforced disappearances in the case law of the Inter-American Court of Human Rights.
Nikolas Kyriakou.
2014
En: Inter-American and European Human Rights Journal.



Resumen: This article seeks to address a series of issues relating to the case law of the InterAmerican Court of Human Rights (IACtHR) on cases of enforced disappearances. First, it will identify the separate human rights violations implicated in the perpetration of enforced disappearances and discern the IACtHR's methodological approach on re-conceptualising enforced disappearance as a continuous and multiple human rights violation. Further, it will focus on the issue of the continuous nature of the violation and will point to certain inconsistencies that the IACtHR's analysis appears to suffer from. Second, it will address the IACtHR's inclusive approach when identifying the victims of enforced disappearance. Beyond the material victim, the IACtHR has created an iuris tantum list of individuals that are potentially affected by enforced disappearance. Third, it will explore the manifold remedial schemes that the IACtHR has devised for cases of forced disappearance. Fourth, it will seek to compare the assessment of the IACtHR with that of the European Court of Human Rights (ECtHR) and of the Human Rights Committee (HRC) in some of the aforementioned themes. The purpose of this comparative exercise will be to further the analysis of the IACtHR's case law on the basis of a horizontal comparison and will aim at illustrating the innovative approaches and solutions reached by the IACtHR.

Contributions and challenges for the Inter-American Court of Human Rights for the protection of migrants' rights: The Case of Vélez Loor v. Panama.
Gisela De León.
2014
En: Inter-American and European Human Rights Journal.



Resumen: Migration is a global phenomenon that affects every country in the world. Migrants find themselves in situations of particular vulnerability that require states to adopt measures for their protection. The international community has elaborated a generally recognized framework with this aim, and many international bodies have developed standards with the same objective. This article explores the contributions of one of these bodies to protect migrants: the Inter-American Court of Human Rights. It examines the earlier developments of the jurisprudence of the Court on this matter, and later focuses on the first case about migrant rights that was decided by the Court: the Case of Velez Loor v. Panama. This landmark decision addressed important issues that affect the rights of migrants at present, such as the criminalization of irregular migration, the inadequate detention conditions for undocumented migrants, and the lack of access to adequate remedies to challenge the decisions that affect their rights, among others.

Conception, fertilization and the onset of human personhood: A note on the Case Artavia Murillo et al. v. Costa Rica.
Eduardo Rivera López.
2014
En: Inter-American and European Human Rights Journal.



Resumen: In this critical note it is argued that one of the crucial arguments of the recent judgment by the Inter-American Court of Human Rights in Artavia Murillo fails and shows a common conceptual confusion in legal argumentation. The Court considers that the word "conception"in paragraph 4(1) of the American Convention on Human Rights must be understood as "implantation,. and not, as claimed by one part of the doctrine and the minority opinion in this case, as "fertilization."' The normative consequence of this interpretation is that preimplantation embryos (for example, embryos in vitro) do not enjoy the legal protections established by the Convention, that is, the protection (in general) of a right to life. The main argument for this interpretation is that a preimplantation embryo is not viable unless it is implanted in the uterus. The argument is fallacious, since it attempts to support a normative conclusion on scientific, empirical premises alone.

Positive obligations in the jurisprudence of the Inter-American Court of Human Rights.
Laurens Lavrysen.
2014
En: Inter-American and European Human Rights Journal.



Resumen: The present article examines the concept of positive obligations in the case law of the Inter-American Court of Human Rights (the Court). From its first contentious case of Velásquez-Rodríguez v. Honduras on, the Court has clearly rejected the classical negativistic position that human rights only give rise to negative obligations to refrain from acting in such a way that violates human rights. Instead the Court has interpreted the American Convention on Human Rights (ACHR) as also giving rise to positive obligations that require actions by the state to actively protect against human rights violations. Based on Articles 1(1) and 2 ACHR in conjunction with specific ACHR rights, the Court has recognised a wide array of positive obligations, including obligations to prevent, investigate, punish and provide reparations for human rights violations, as well as obligations to fulfil human rights (in particular the right to a 'dignified' life) and to provide substantive equality. The paper argues that the Court's positive obligations case law clearly illustrates that the Court is acting at the forefront of developments in international human rights law. Moreover, it is argued that if the Court pursues the Drittwirkung approach proposed in its Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants, the ACHR has the potential of "constitutionalising" nearly all dimensions of human conduct.

The Inter-American Court of Human Rights' Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil judgment and the Brazilian Federal Supreme Court judgment on the constitutionality and conventionality of the 1979 amnesty law.
Leandro Ayres França.
2014
En: Inter-American and European Human Rights Journal.



Resumen: In the year 1972, the Communist Party of Brazil (PCdoB) gathered around 90 people in the region of Sao Joao do Araguaia. Para, to fight the Brazilian military dictatorship (1964-1985). The military government decided to react, and between April of that year and January 1975 sent troops to occupy the territory and decimate the resistance. In 1973, the Guerrilla repression was intensified and the official order turned to eliminate all captured. This struggle became known as the Guerrilha do Araguaia. From the 62 people known as victims in those conflicts, the remains of only two of them were found and identified. Only after decades and an indefatigable effort from researchers, journalists and relatives of the missing dissidents, the Guerrilla was brought to public knowledge. This article analyses the Brazilian Federal Supreme Court's (FSC) Non-compliance Action of Fundamental Principle No. 153 Judgment on the constitutionality and conventionality of the 1979 Amnesty Law.


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