Inter-American Convention Research Articles

Tráfico internacional de menores: aspectos penales

This paper isaimed at providing the reader with a descriptive summary of the main international and domestic legal instruments for the prevention and punishment of international traffic of children, specifically focusing on the Inter-American Convention on International Traffic in Minors as the most significant regulation on this matter. The objective is to pose questions regarding some of the regulatory assumptions of this instrument from two core aspects on its legislative design: the technique for the description of criminal offences and its impact on international cooperation mechanisms in criminal matters. This framework intends to explore the features of this criminal activity based on some materials not usually found in specialized discourse. Finally, the purpose of this paper is to capture an interdisciplinary synthesis at the intersection of Private International Law and International Criminal Law, just at a cardinal point of regulatory convergence: the best interests of the child.

LEGAL LIMITATION FREEDOM OF EXPRESSION: INTERNATIONAL LEGAL ASPECT

The article is devoted to the problem of international legal regulation of the restriction of freedom of expression. There are explored the main international legal acts and practice of human rights international bodies in this field. The authors analyze the main criteria for the legitimate restriction of freedom of expression, and conclude that all restrictions must meet the following requirements: be lawful, be necessary, and be carried out with the purpose provided by the norms of international law. Exploring each of these criteria, the authors further establish the requirements that the doctrine and practice have been developed about them. It is noted that the most extensive list of such criteria is the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the somewhat narrower Covenant on Civil and Political Rights of 1966 and the Inter-American Convention on Human Rights of 1969. It is noted that the most extensive list of such criteria are contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the somewhat narrower list of such criteria are contained in the Covenant about Civil and Political Rights of 1966 and the Inter-American Convention of Human Rights of 1969. As for the African Convention of Human and Peoples Rights of 1981, it generally implies that freedom of expression is carried out within the limits prescribed by law. It is argued that the norms of international law, in particular Art. 20 of the Covenant about Civil and Political Rights of 1966 sets a number of absolute limits on freedom of expression, namely: prohibition of the propaganda of war, national, racial or religious hatred. Similar norms are duplicated by a number of other international legal instruments. Particular attention is paid to the philosophical-legal views on the question of legitimate restriction of freedom expression of views. The authors note that the opinions of scientists on this subject are significantly different: from the absolute freedom to express opinions until it is fully restrained by the establishment of special procedures, such as previous censorship. Key words: freedom of expression; freedom of speech; limitation freedom of expression; censorship; ECHR; UN Human Rights Committee.

The limitations of the hague convention to solve conflicts arising out of international child kidnapping

Abstract: The present article aims to promote an analysis on the major Conventions concerning the removal and retention of children in different countries than theirs of habitual residence by one of the guardians, in particular the Hague Convention on the Civil Aspects of International Child Abduction, to discuss about the effectiveness on the application of its precepts. The study purposes to identify limitations and omissions in its text susceptible to undermine its applicability in practical cases. Key words: International parental child abduction. Private International Law. Principle of the best interests of the child. Hague Convention. Inter-American Convention.

Palliative Care and Human Rights: A Decade of Evolution in Standards

ContextHuman rights standards to address palliative care have developed over the last decade. ObjectivesThis article aims to examine key milestones in the evolution of human rights standards to address palliative care, relevant advocacy efforts, and areas for further growth. MethodsThe article provides an analysis of human rights standards in the context of palliative care through the lens of the right to health, freedom from torture and ill treatment, and the rights of older persons and children. ResultsSignificant developments include the following: 1) the first human rights treaty to explicitly recognize the right to palliative care, the Inter-American Convention on the Rights of Older Persons; 2) the first World Health Assembly resolution on palliative care; 3) a report by the UN Special Rapporteur on Torture with a focus on denial of pain treatment; 4) addressing the availability of controlled medicines at the UN General Assembly Special Session on the World Drug Problem. ConclusionDevelopment of human rights standards in relation to palliative care has been most notable in the context of the right to health, freedom from torture and ill treatment, and the rights of older persons. More work is needed in the context of the rights of children, and human rights treaty bodies are still not consistently addressing state obligations with regards to palliative care.

Autonomy and Capacity: About Human Rights of Older Persons in Dependency Situations

Fil: Dabove, Maria Isolina. Consejo Nacional de Investigaciones Cientificas y Tecnicas; Argentina. Universidad de Buenos Aires; Argentina

Inter-American Convention on Protecting the Human Rights of Older Persons

Inter-American Convention on Protecting the Human Rights of Older Persons

Un paso adelante para los derechos humanos. La protección de las personas mayores en las Américas

This paper aims to give a general overview of the contents and the process of the draft of the Inter-American Convention on Protecting the Human Rights of Older Persons, approved by the Organisation of American States on 15 June 2015, in order to stress its significance and encourage action from the interested parties, in particular, the holders of these rights. To this end, I review the various stages of negotiation and elaboration of this Convention, and also analyse its innovative content of rights, which I have classified in three groups –emerging, extended, and current. Finally, I discuss to the follow-up mechanisms established by the Convention and reflect on the importance of approving the Convention.

Violencia basada en el género y el rol del Poder Judicial

La discriminacion, la re-victimizacion y la impunidad en la respuesta del poder judicial a casos concretos de violencia de genero han sido identificados en relacion al acceso a la justicia de las mujeres victimas de la violencia en las Americas (CIDH, 2007). Las investigaciones senalan que las mujeres, ninos, ninas y adolescentes se hallan en alto riesgo de morir en manos de sus agresores cuando denuncian la violencia y/o piden medidas de proteccion, o durante las visitas paterno-filial. El Poder Judicial enfrenta en estos casos una alta responsabilidad etica y juridica de velar por la proteccion de quienes denuncian. Por otra parte, la Declaracion de Naciones Unidas sobre Victimas de Delitos (1985) y las Reglas de Brasilia (2008) senalan que las mujeres, ninos/as victimas de violencia de genero que requieren especial proteccion, y la Convencion Interamericana Belen Do Para establece obligaciones concretas al Poder Judicial. El presente articulo aborda el rol del Poder Judicial en America Latina en su respuesta a casos debidos a violencia basada en el genero, y partiendo del modelo propuesto por Ptacek (1999) y que hemos adaptado a nuestra realidad regional, sugiriendo respuestas que empoderan a las mujeres y sus hijos/as, a fin de obtener proteccion y salir de esta.

Ending Violence against Women in Latin America: Feminist Norm Setting in a Multilevel Context

Latin American feminists brought up the issue of violence in the 1970s under military rule or situations of armed conflict. These contexts made feminists specifically concerned with state violence against women. Women's organizations pointed to torture and rape of political prisoners and the use of rape as a weapon of war and connected these forms of violence to deeper societal patterns of subordination and violence against women in both the private and public spheres. Processes of democratization in the region brought new opportunities to institutionalize norms to end violence against women (VAW), and in many countries feminists managed to get the issue on the political agenda. In the mid 1990s, the region pioneered international legislation on VAW that uniquely included state-sponsored violence. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994) established an international obligation for states to prevent, investigate, and punish VAW regardless of whether it takes place in the home, the community, or in the public sphere. While Latin American governments massively ratified this convention, national legislation was not brought in line with the broad scope of the international convention. This points to the complex and often contradictory dynamics of institutionalizing norms to oppose VAW in multilevel settings.

Kształtowanie się międzynarodowych standardów prawnych w zakresie zapobiegania i reagowania na wymuszone zaginięcia

The aim of the article is to analyze the development of international legal standards concerning enforced disappearances. According to international human rights law enforced disappearances occur, when persons are deprived of their liberty, at least with the acquiescence of a state, which is followed by a refusal to acknowledge the deprivation or by concealment of their fate or whereabouts. The definition of enforced disappearances in the statute of the International Criminal Court covers also disappearances perpetrated by (or with at least the acquiescence of) political organizations. The article consists of a thorough analysis of provisions contained in four legal documents: the Declaration on the protection of all persons from enforced disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court and the International Convention for the Protection of All Persons from Enforced Disappearance.

CRIMINAL LIABILITY OF PUBLIC OFFICIALS FOR ILLICIT ENRICHMENT: COMPARING APPROACHES OF THE USE OF INDIRECT METHODS OF PROOF IN INVESTIGATING ILLICIT ENRICHMENT IN INDONESIA AND THE U.S.

In recent years, the international community has come to recognize the power of investigating illicit enrichment for uncovering corrupt offenses. The Inter-American Convention Against Corruption (IACAC) and the United Nation Convention Against Corruption (UNCAC) are two international conventions that address the issue of illicit enrichment. berita internasional in Indonesia, as a signatory of the UNCAC, does not criminalize illicit enrichment as the UNCAC recommends, but it does require public officials to submit financial disclosures, which may be used by the Indonesian Corruption Eradication Commission (KPK) to strengthen the evidence in corruption prosecutions. This system has not worked, however, because there is no criminal or civil prosecution for failing to file financial disclosures, or for giving false statements within those disclosures; further, there is no specific methods of proof to use in investigations. As a result, there has been significant debate over whether Indonesia should criminalize illicit enrichment, consistent with the recommendation of the UNCAC. Part of the debate centers on concerns about the rights of defendants and the threat of individual rights regarding presumption of innocence. Drawing from the U.S. approach to investigations in tax evasion and financial disclosure cases, this paper recommends that Indonesia avoid criminalizing illicit enrichment, and instead establish civil and criminal prosecution of financial disclosure system for fail to file and give false information, and incorporate indirect methods of proof for illicit enrichment investigation that may find evidence to strengthen corruption prosecutions.

Tools for Academic Research on Human Rights in Latin America: the Inter-American Human Rights System

AbstractThe article below, which is written by Gloria Orrego Hoyos, presents an overview of the Inter-American Human Rights System, its main instruments, its organs for the protection and promotion of human rights in the Americas and the available tools for the academic research and the activism in the vindication for human rights in the region. This information is presented from the contextualization of the system within a history of violation of human rights in the region, and the role of both the Inter-American Convention and the Inter-American Court in the transformation of the social, political and institutional realities of the people of the continent.

Sulla convenzione dell’organizzazione degli stati americani sui diritti delle persone anziane

The purpose of this paper is to investigate the main issues related to the international protection of older persons under the recent inter-american convention on the protection and promotion of the rights and dignity of older persons. It first critically assess the meaning inter alia of the terms «older persons», «equality of opportunity», «older people in need of long-term care and assistance» and «accessibility». Second, and finally, it examines the range of human rights and difficulites associated with interpreting the content and scope of each rights, balanced against other competing rights and values.

CONSTRUYENDO UN DERECHO A LOS CUIDADOS PALIATIVOS: LA CONVENCIÓN INTERAMERICANA DE LOS DERECHOS DE LAS PERSONAS MAYORES

Since its conception nearly ten years ago, efforts to reach a universally acceptable definition of a ‘right to palliate care’ have been largely unsuccessful, mainly since the debate so far has been substantially on an abstract philosophical/legal level rather than arising out of the real experience of terminally ill people struggling to achieve rights and addressing their immediate needs. As an alternative to the problem of achieving a philosophical/legal definition of a right to palliative care, this work elaborates a strategy of constructing a right to palliative care through the interpretation of how a right to administer palliative medicines is embodied in current soft and hard law instruments. To illustrate how this may be done, the Inter-American Convention on the Rights of Older Persons (ICROP) is used as a case study. An analysis of the ICROP reveals the extent to which it embodies values associated with a right to palliative care: fundamental rights and freedoms that recognize human dignity; encompassing traditional health rights; the right to live a dignified existence; positive rights. The increasing experience people gain with the complex issues arising out of a right to health care conceived as affordable and comprehensive for everyone could generate further texts explicitly referring to a right to administer palliative medicines. Analysis of such texts may reveal that, in time, everyone does indeed have a right to care, including palliative care.

Democracy and Rights in Gelman v. Uruguay

On 24 February 2011, the Inter-American Court of Human Rights (IACtHR) issued its decision in Gelman v. Uruguay, condemning Uruguay for the forced disappearance of María Claudia García Iruretagoyena de Gelman and the kidnapping of her daughter Macarena Gelman during the military dictatorship. In the decision, the Court ordered Uruguay to remove all obstacles that enabled those responsible for the crimes to go unpunished. Accordingly, it declared that Law 15848 on the Expiry of Punitive Claims of the State (“Expiry Law”), a 1986 amnesty law that prevented the prosecution of people who had committed serious human rights violations during the military dictatorship, was incompatible with the American Convention on Human Rights and the Inter-American Convention on Forced Disappearance of Persons, and therefore lacked legal effect. That the law had been passed democratically and subsequently reaffirmed two times by popular referendums did not change the Court’s evaluation or impede the Court from annulling it.

Suspensión del juicio a prueba en hechos de violencia contra la mujer

This essay offers an analysis of the viability of probation in criminal cases dealing with violence against women. To this end, it assesses the Sentence of the Supreme Court of Justice of Argentina in the case “Gongora, Gabriel Arnaldo / No 14.092”, dated April 23, 2013. This analysis considers five relevant topics: violence against women as a problem in itself, the Argentinian normative framework, the reality of the judicial system, and the interests of both the victim and the imputed. The main argument in the Court’s sentence departs from the premise that recourse to probation is incompatible with the purpose of the Inter-American Convention on the Prevention, Sanction and Eradication of Violence against Women (Convention Belem do Para). This is so because it is considered to neglect the compromise assumed by the State to “sanction” the relevant offenses by means of a “fair and efective legal procedure” (article 7, b and f of the Convention). In addition to this, the sentence claims that this would be inconsistent with the Interpretation Guidelines of the Vienna Convention on the Law of Treaty. In contrast to this view, this article argues that there is no prima facie legal impediment to proceed with probation in cases involving violence against women. To the contrary, this option may find support in a systemic analysis of Argentinian law. Furthermore, it maintains that trial and punishment may not constitute the most efficient response neither from the perspective of the criminal system, nor from the perspective of the victim. Parallel to this, it suggests that there are reasons to think that, depending on the case, suspension may turn out to be beneficial both for judicial administration and for those involved. Finally, the article motivates the claim that recourse to probation in cases involving violence against women must be evaluated in a case-by-case analysis. When regarded as pertinent, judicial operators must focus in the conditions for its admission and in the strict vigilance of its execution. As a result of this, it becomes imperative that probation receives regulation in the Criminal Procedure Code as long as substantive rights, judicial principles, rights and constitucional warranties constitute normative dimensions that should not be severed from each other.

The Protection of Geographical Indications in the Inter-American Convention

The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections. Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member of the General Inter American Convention for Trade Mark and Commercial Protection (“Inter-American Convention”). What is even more astonishing is that, at the time, the provisions on GIs in the Inter-American Convention — a regional agreement instituted by the US — were the most developed and strongest protections available in any international agreement. Given that this agreement is still in effect, it indicates the minimum standards for the protection of GIs in the US. Understanding this agreement therefore offers a sturdier basis for the international negotiation of GI protections. This article elucidates the history of US protection of GIs. It seeks to uncover the mystery behind the inclusion of a chapter GI protection within the Inter-American Convention in 1929 and the absence of these protections in the 1946 Lanham Act. The article reveals the momentous contributions of Edward Rogers and Stephen Ladas, two of the leading practitioners of US trademark law in the twentieth century. These two men had as sophisticated an understanding of US common law and international obligations as anyone. The resulting texts of the Inter-American Convention and the Lanham Act, both of which they were instrumental in drafting, were no mistake.

Los avances más recientes en la protección de los derechos humanos del grupo LGBTI en el ámbito interamericano

El artículo describe los principales avances que han contribuidoa visibilizar la temática de las Lesbianas, Gays, Bisexuales, Travestis e Intersexuales (LGBTI) a nivel interamericano. Para ello, comienza con el análisis de algunas cuestiones conceptuales que son transversales al tema y discute la importancia que tiene la inclusión de varios compromisos políticos y declaraciones en las resoluciones de la Asamblea General de la OEA referentes a la protección de la comunidad LGBTI. Si bien aún pocos casos han llegado a la Comisión Interamericana de Derechos Humanos, algunos casos emblemáticos han merecido el pronunciamiento de la Corte Interamericana de Derechos Humanos, lo que ya genera una jurisprudencia interesante sobre el tema. Finalmente, el texto aborda el contenido de la más reciente Convención Interamericana sobre derechos humanos adoptada por la Asamblea General de la OEA en 2013, la cual incluye dentro de su ámbito de aplicación al colectivo LGBTI. Así, dicha Convención constituye el primer tratado regional en vigor referido a la materia.

Consumer Protection in Private International Law Rules: The Need for an Inter-American Convention on the Law Applicable to Some Consumer Contracts and Consumer Transactions (CIDIP)

Consumer Protection in Private International Law Rules: The Need for an Inter-American Convention on the Law Applicable to Some Consumer Contracts and Consumer Transactions (CIDIP)

The International Validity of the Venezuelan Denunciation of the American Convention on Human Rights

Abstract This paper analyzes the Venezuelan denunciation of the American Convention on Human Rights from a constitutional and an international approach, taking into account the Venezuelan Constitution, the Inter-American Convention on Human Rights and the interpretative rules of the Vienna Convention on the Law of Treaties (VCLT), to demonstrate that, even with the existence of article 78 of the American Convention, the denunciation is contrary to the Inter-American System as a system of two levels and therefore it shall be considered unlawful and invalid.