Abstract
The rights of migrants represent a challenge for States, because their guarantee evidences the permanent tension between the sovereignty of the States and the protection of human rights in the international context. This article will analyse if it is really possible to affirm the existence of a true evolutionary development of the jurisprudence of the Inter-American Court of Human Rights in a contentious and consultative way and which, therefore, may contribute to the improvement of the rights of migrants in the IACHR. To this end, the text will address the following parts: I) Regulatory framework oriented to the sovereignty of States; II) The progressive contentious jurisprudence of the Inter-American Court III) The advisory opinions: integrating elements of rights and; IV) Conclusions
Highlights
The human rights recognized in international treaties are predicated by all people and International Human Rights Law (IACHR), under the claim of universality2 (UN, 1993: 19), has established the reasons why they cannot have discriminatory treatment.3 The Inter-American System for the Protection of Human Rights (SIDH) has not been the exception and, through the evolution that it has had regarding the emergence of its bodies, regulations and jurisprudence, has been concerned with establishing parameters for the protection of human rights in the American region, applicable to all persons subject to the jurisdiction of the member states
The document is the result of research on a project called “The right to a dignified life in the context of immigration”4, which uses a dogmatic methodology of documentary analysis of primary normative, jurisprudential and doctrinal sources of the Inter-American Commission on Human Rights (IACHR), but which in this case will focus on the activity of the Inter-American Court, reference to the reports of the IACHR, as well as to other instruments that are part of the IACHR corpus, may be made
The ruling refers to previous advisory opinions14 (IACHR, 1984) in which the importance of nationality is recognized for the exercise of other rights, such as those derived from statelessness (IACHR, 2001: paragraph 91 et seq.)
Summary
The human rights recognized in international treaties are predicated by all people and International Human Rights Law (IACHR), under the claim of universality (UN, 1993: 19), has established the reasons why they cannot have discriminatory treatment. The Inter-American System for the Protection of Human Rights (SIDH) has not been the exception and, through the evolution that it has had regarding the emergence of its bodies, regulations and jurisprudence, has been concerned with establishing parameters for the protection of human rights in the American region, applicable to all persons subject to the jurisdiction of the member states. The reality of migration is increasing and according to the OAS, between 2012 and 2016 7.2 million people left their country in the Americas (OAS, 2017: 4) In this context, it is of interest to analyse how the contentious and advisory jurisprudence of the Inter-American Court has behaved in this area, and identify which are its main contributions in order to demonstrate the beginning of the construction of an emerging normative corpus on the rights of foreigners and migrants, which results in the creation of interpretative parameters for the OAS member states, but which at a comparative level can inspire developments in other regional contexts. The document is the result of research on a project called “The right to a dignified life in the context of immigration”, which uses a dogmatic methodology of documentary analysis of primary normative, jurisprudential and doctrinal sources of the IACHR, but which in this case will focus on the activity of the Inter-American Court, reference to the reports of the IACHR, as well as to other instruments that are part of the IACHR corpus, may be made
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