Regional Tribunals Research Articles

Jurisprudential Developments and Adjudication of Indigenous Peoples’ Rights

Abstract In recent years, the Inter-American Court of Human Rights (“IACrtHR”) has developed an innovative jurisprudence that has reaffirmed and further developed the right of indigenous peoples as an integrative part of the corpus juris of the international human rights law (“ihrl”). In fact, through a dynamic, systemic, evolutive and effective interpretation of the American Convention on Human Rights (“achr”), the regional tribunal has expanded the scope of protection of Article 21 achr (Right to Property) in a manner that includes the protection of the special relationship that indigenous peoples have with their traditional lands, territories and natural resources. Based on this interpretative development, the IACrtHR has further expanded the protection of indigenous peoples’ communal property to guarantee their right to cultural identity and to a dignified life, that is, to live in accordance with their own cultural traditions and understanding of dignity. In this sense, specific safeguards against unjustified restrictions on the right to property, that could amount to a denial of the cultural survival of indigenous peoples, were jurisprudentially identified by the regional tribunal. This paper critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas, as developed by the IACrtHR. In particular, it pays special attention to the methods of interpretation applied by the regional tribunal and the manner that has referred to the corpus juris of international human rights law that specifically protects and guarantees the rights of indigenous peoples.

Expanding the Protection of Children’s Rights towards a Dignified Life: The Emerging Jurisprudential Developments in the Americas

The Inter-American Court of Human Rights (IACrtHR) has developed in recent years an innovative jurisprudence that has integrated the entity and extension of States’ obligations regarding children’s rights—as established in Article 19 ACHR—through the evolutive, dynamic, and effective interpretation of the American Convention on Human Rights (ACHR). In fact, by acknowledging the existence of an international corpus juris for the protection of children’s rights, the Court has examined this provision in the light of instruments enshrined within the corpus juris, such as the UN Convention on the Rights of the Child. This process of normative integration was not only limited to the application of international instruments adopted outside of the Inter-American system, but also includes internal references to interconnected rights recognised within the American Convention. Consequently, by analysing the scope of Article 19 ACHR in the light of Article 4 ACHR (right to life) and the corpus juris for the protection of children, the Inter-American Court has further expanded the protection of children’s rights towards the protection of the right to a dignified life. While focusing on the landmark jurisprudence developed by IACrtHR, this paper seeks to unveil the hermeneutical paths undertaken by the regional tribunal in connection with the systemic integration of Article 19 ACHR. In particular, it focuses on the emerging jurisprudential development of positive obligations upon States Members regarding the effective protection of children’s right to a dignified existence.

ASSESSING AFRICAN REGIONAL INVESTMENT INSTRUMENTS AND INVESTOR–STATE DISPUTE SETTLEMENT

AbstractThis article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

Análise da (in)constitucionalidade da vicência da lei complementar n. 110/2001

O presente artigo tem como principal objetivo discussão acerca da constitucionalidade da cobrança da Contribuição Social que instituiu o adicional de 10% (dez por cento) sobre a multa rescisória do Fundo de Garantia do Tempo de Serviço (FGTS), cujo caráter de ambas as cobranças é indenizatório, em face da tese pautada nos Tribunais Superiores do ordenamento jurídico brasileiro que discutem a possível perda de finalidade da contribuição social, causando inconstitucionalidade superveniente. Utilizou-se, para êxito da pesquisa científica, o método qualitativo, em forma da análise do estado da lei, com caráter exploratório, pesquisas jurisprudenciais em diversas Cortes e o posicionamento do atual Presidente do Brasil. Com isso, pode-se observar, uma inconsistência entre o posicionamento dos Tribunais Regionais Federais, doutrinadores e até mesmo do Chefe do Executivo em âmbito nacional, que se manifestam a favor do fim da verba indenizatória, e dos Tribunais Superiores, que se mantêm firmes na posição tangente a manutenção da cobrança dos 10% (dez por cento). Tantos posicionamentos convergiram no mesmo entendimento acerca da inconstitucionalidade da vigência e cobrança desta contribuição social, além da insatisfação dos contribuintes em arcarem com despesas que não eram de suas responsabilidades, que esta veio a ser vetada no mês de dezembro do ano de 2019.

Environmental Rights: Recognition, Implementation and Outcomes

This article examines the emergence of a human right to a healthy environment emerged; how it is recognized in international, regional, national and subnational legal instruments; the extent to which it has been implemented in law; whether it improves environmental and human health outcomes; and the potential for international recognition. It posits that the case for legal recognition of a RHE is complicated and complex. There are normative, legal, ethical, and moral justifications that both the planet and people living on it are better off in a world that recognizes a RHE. Environmental rights are real. The article reports that there are 136 countries subject to a legal RHE, including: • 84 expressly (see Appendix, The Case for Environmental Human Rights). See also, Environmental Rights Map (same); • 6 reliably impliedly (Bangladesh, Guatemala, India, Pakistan, Panama, and Sri Lanka); • 23 legislatively--not already counted (Armenia, Bhutan, Bosnia-Herzegovina, Cyprus, Djibouti, Eretria, Gambia, Guatemala, Guinea-Bissau, Haiti, Kazakhstan, Lebanon, Liberia, Lithuania, Madagascar, Monaco, Nigeria, Palau, Panama, Saudi Arabia, Tajikistan, Tanzania, and Uruguay); • 23 per ratification of the African Charter--not already counted (see Appendix); Does legal recognition of a RHE improve environmental outcomes? The article reports that with some exceptions there is (still) very modest pursuit of RHE-based legal claims by litigants. Very few cases reach the merits. Few apex courts (those that issue controlling or precedential decisions) engage express RHE-based claims. Those asked to consider whether there is an unenumerated RHE usually find there isn’t. There are complex reasons for the dearth of cases. Many constitutionally entrenched provisions aren’t self-executing (enforceable without legislative action) because they don’t appear in the “fundamental rights” or “bill of rights” portion of the constitution. Even if they do, a gauntlet of procedural obstacles await, including “standing” (who can sue), “jurisdiction” (which court can hear the matter), and separation of powers (whether the matter should be presented to another – perhaps elected – branch of government). There is much more jurisprudence regarding the extent to which other socioeconomic and cultural (“SEC”) rights impliedly incorporate a RHE, including rights life, health, water, family and dignity. Exemplars include the countries noted above, as well as some regional tribunals, including the European and Inter-American Courts of Human Rights. Yet implementation lags even where enforcement succeeds. While embedding a RHE in a constitution may correlate (or be “positively associated”) with better environmental performance (and the results here are mixed), evidence – especially that which has been replicated – that doing so necessarily causes environmental improvement is in short supply. Presently, there is more evidence of effectiveness in vindicating SEC rights in the service of environmental improvement, including concerning climate change. A fair assessment is that while the case for RHE is solid, it has shortcomings that warrant further evidence-based analytical interrogation and judicial training. In the end, the outcome and objective converge: the world is better off for recognizing everyone’s right to a healthy environment. International recognition can help to redress shortcomings, realize potential, and catalyze the cause. [End]

Human Rights of Children in the Context of Migration Processes. Innovative Efforts for Integrating Regional Human Rights Standards in the Americas

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide an effective protection to unaccompanied children that enter irregularly into the territory of a given country, when the safeguards guaranteed at the national level are elusive or inefficient? By focusing on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in recent years, this paper intends to unveil how a systemic integration of children’s rights, under the light of the current international law developments, could provide an effective protection for the rights of children in the context of migration processes. In fact, as a result of an evolutive, dynamic and effective interpretation, the regional tribunal has expanded the scope of protection of the American Convention on Human Rights, by taking into consideration and making known, references to instruments and provisions enshrined within the corpus juris of international human rights law, such as the UN Convention of the Rights of the Child, and—consequently—improving the level of protection of millions of children in the Americas.

Licencias sociales para sanar: la construcción como expertos de salud de curanderas y curanderos en la Castilla del barroco

This paper explores how in 17th century Castile healers, especially women healers, fashioned themselves as health agents, in a time when no official title accredited them as such. Particular attention will be given to the definition and representation of the individual self, understood as a strategy to demonstrate publicly their knowledge and skills to cure. In this way we aim to understand, from the context of medical pluralism, a mechanism that ensured the functioning of a medical culture that operated on the edge of the sphere of regulation. In order to reconstruct the traces left behind by these in general poorly documented irregular healers, this study uses as its sources trial proceedings from two regional tribunals of the Inquisition (tribunals of Cuenca and Toledo). Based on several case studies, the analysis focuses concretely on the way in which individuals represented themselves as healers in two very distinctive settings: within the courtroom while defending themselves against an accusation and outside of it, in the context of community, when promoting their skills to their audiences.

Transitional Justice Pre-Transition: The International Community's Efforts in Syria

This chapter focuses on the role of the international community in fostering pre-transition transitional justice. This is a project that can take multiple forms, including documentation efforts initiated by states, the UN Human Rights Council, and the General Assembly. States and NGOs also surveyed and trained Syrian actors to prepare them for undertaking a program of transitional justice, including the psychosocial rehabilitation of victims and perpetrators. With access to the International Criminal Court effectively barred by Russia’s veto, accountability alternatives included promoting a potential regional tribunal or specialised chambers that could be inserted within the Syrian judicial system, as well as national trials under principles of extraterritorial jurisdiction. Notwithstanding the pre-transition work that has been achieved to date, much will remain to be done once the war is at a close. What can be achieved from the perspective of transitional justice will depend on the composition of the next Syrian regime and the role of Bashar al-Assad, who has become a symbol of sectarian repression and is unlikely to countenance robust justice or truth-telling processes. Whether he will be open to making a genuine commitment to reconciliation and the rehabilitation of victims remains to be seen. In any case, the most enduring legacy of the international community’s pre-transition transitional justice enterprise will likely prove to be twofold. First, the international community has invested heavily in the documentation of abuses with an eye towards preserving a cache of evidence that can be tapped into as accountability processes go forward. Second is the creation of a cadre of Syrian practitioners with enhanced skills in the challenges and possibilities of transitional justice. It will be for these actors to decide what is feasible and what is desirable and whether and how to involve the international community to achieve the optimal balance between the two. With Assad still in power, there may be limited opportunities for international engagement in this regard, so Syrians across the political spectrum will have to determine for themselves whether the field of transitional justice has anything to offer as they work to rebuild their society and body politic.

The Role of International Tribunals in the Development of Historical Narratives

Collective memories are significant for both individuals and societies, as they play an important role in the construction of collective identities. This article focuses on the role of non-criminal international tribunals in the development of collective memories, asking whether it is desirable for such international tribunals to be involved in the construction of historical narratives. International tribunals have not adopted a consistent approach concerning the presentation of the case’s historical background in their judgments. The question of whether it is desirable for non-criminal tribunals to assume an active role in this sphere is analysed using three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach. The conclusions of this article emphasize that international adjudicators are embedded in socio-historical environments and are influenced by historical narratives prevailing their respective groups (regardless of whether they present an historical narrative or not). International tribunals interact with additional agents of memory (e.g., governmental bodies and the mass media); and though they are more constrained than other agents of memory (e.g., regarding evidentiary rules), they do hold some significant advantages in this sphere. Each agent of memory possesses some advantages and limits and they often cross-fertilize each other. Where reasonable available evidence permits, international tribunals (and particularly regional ones) may legitimately play a role in the construction of historical narratives. The participation of international tribunals in this sphere is particularly vital where national judicial or semi-judicial bodies deliberately conceal a significant historical event generating extensive harm to a disadvantaged group. In such cases, it is desirable that international tribunals undertake an inclusive approach and make reasonable efforts to take into account historical findings produced by other agents of memory (such as historians and experts), while acknowledging the possible bias of each actor. Informed by the symbolic-interactionist approach, we are of the view that judicial-historical narratives are important not only for the social integration of a particular group; but mainly as a meaningful remedy for individuals and smaller communities whose rights have been violated. In light of the valuable socio-cultural qualities of local institutions in this sphere, it is generally legitimate for regional tribunals (rather than global ones) to take an active part in the development of regional historical heritage; particularly where such judicial-historical pronouncements are significant for small communities or individuals who suffered a violation of their legal rights. The benefits of constructing collective memories in a bottom-up process indicate that where national tribunals (or local quasi-judicial bodies) function effectively and reliably, international tribunals should generally refrain from interfering with the development of local historical narratives. Where international tribunals encounter considerable asymmetric settings, it is desirable to apply adequate rules of evidence to mitigate the parties' unbalanced capacities in proving historical events.

Focus: Recent developments in the struggle to end slavery in Mauritania

6 | International Union Rights | 25/2 FOCUS | TRADE UNION RIGHTS IN THE MENA COUNTRIES Recent developments in the struggle to end slavery in Mauritania The ongoing prevalence of slavery is a tragic reality in Mauritania, where thousands of people, including children, are trapped in a life of servitude. Recent months have seen significant developments in the longstanding fight to end slavery in the country. One such development was a landmark ruling by the African Committee of Experts on the Rights and Welfare of the Child (the ‘Committee’), a body of the African Union whose mandate includes monitoring implementation of the rights enshrined in the African Charter on the Rights and Welfare of the Child (the ‘Charter’). In December 2017, the Committee ruled that Mauritania breached several of its obligations under the Charter in regards to Said Ould Salem and Yarg Ould Salem, two brothers who grew up in slavery1. In March 2018, an important domestic judgment was issued in which two individuals received lengthy sentences for slavery offences. A brief history of slavery in Mauritania Slavery in Mauritania is closely linked to ethnicity and the extremely hierarchical nature of Mauritanian society. The white Moors, also known as the Arab-Berbers or Beidan, constitute the country’s ruling elite and control the government, law enforcement and the economy. Historically, the white Moors raided and enslaved sub-Saharan ethnic communities along the Senegal River, who over time became assimilated into Moor culture. This population now constitutes a distinct group called the Haratine, or black Moors, who are considered the ‘slave’ class in Mauritania. While other black minority ethnic groups in Mauritania also have a tradition of slavery, today the Haratine are most significantly impacted by slavery and slavery-like practices. In 1981, Mauritania became the last country in the world to formally abolish slavery. The enactment of national legislation in 2007 criminalised slavery and slavery-like practices for the first time (the ‘2007 Anti-Slavery Law’). This law prohibited discrimination based on slave status, established penalties of fines and imprisonment and required public officials to investigate accusations of slavery and slavery-like practices. Unfortunately, Mauritanian authorities largely failed to implement or enforce the 2007 Anti-Slavery Law, which was criticised by anti-slavery advocates both domestically and abroad. Slavery was recognised as a crime against humanity in a 2012 amendment to the Constitution. In 2015, the 2007 Anti-Slavery Law was repealed and replaced by a law that doubled the prison sentence for the crime of slavery and introduced the establishment of special regional tribunals for slavery and slavery-like practices (the ‘2015 AntiSlavery Law’). Two individuals were convicted under this law in May 2016, although their sentences were significantly less than those set out in the law2. The case of Said and Yarg Said and Yarg are brothers who were born in 2000 and 2003 to a Haratine mother within the El Hassine household. As slavery in Mauritania is descent-based, Said and Yarg automatically became property of the El Hassine family at birth. Throughout their childhood, Said and Yarg were forced to look after the family’s animals and undertake domestic work. Referred to only as ‘slave’, they worked daily, with no time for rest, play or prayers. The brothers were not allowed to attend school and were often physically abused. In 2011, after managing to escape, Said and Yarg filed a complaint against the El Hassine family and charges were brought against six family members. In November 2011, the first and only prosecution under the 2007 Anti-Slavery Law led to the conviction of Ahmed Ould El Hassine for holding Said and Yarg in slavery and depriving them of schooling, although his sentence and fine were lower than those prescribed by law. Another family member was acquitted of the same charges, while four others received fines and suspended sentences. Said and Yarg were awarded nominal compensation, which they appealed, and their lawyer asked the state prosecutor to appeal the inadequate sentences and compensation. El Hassine was released on bail four months after his conviction, without prior notification to Said and Yarg’s lawyer and in contravention of Mauritania’s Criminal Code. To this day, Mauritanian authorities have not been...

The international authority of the Inter-American Court of Human Rights: a critique of the conventionality control doctrine

ABSTRACTThis article discusses the constitutional turn in the Inter-American Court of Human Rights’ recent jurisprudence, exemplified in the adoption of the conventionality control doctrine. Building on previous work and inquiring for the first time into the legal theory of Judge Sergio García Ramírez, who created the doctrine, I show that conventionality control lacks solid legal footing and reveals a problematic understanding of the Inter-American Court as a regional constitutional tribunal. I propose, therefore, an alternative account of the doctrine that rests more on state practice. Reviewing how two states, Peru and Argentina, have internalised the Inter-American Court’s case law on amnesty laws – a prominent feature of the court’s jurisprudence – I argue that the court should embrace such domestic developments to, first, provide a robust justification for its assertion of international authority; and second, to strengthen the court in the face of increasing challenges and criticisms raised by states and other actors.

Improving Italian general practice training: the role of academia.

The modern Italian national health service is a Beveridgean system centred around GPs and funded by central taxation.1,2 In order to become eligible to work as a GP, Italian doctors need to undertake a 3-year postgraduate training in general practice.3–6 The latter training — governed nationally by the Italian Ministry of Health and locally by the various Italian regions — is organised by the primary care establishment.3–6 By contrast, all other postgraduate medical specialties in Italy are organised by universities and are governed by the Ministry of Education, University and Research (MIUR). On successful conclusion of the above GP training, Italian doctors are awarded a certificate of completion of training which is then mutually recognised in all member states of the European Union (EU).3–5 Italian doctors in postgraduate university specialty training (that is, non-GP trainees) had not benefited from any financial support from the government during their training until 1991. From 1992 until 2000 a tax-free monthly studentship of about 960 000 Italian Lira was introduced to support non-GP trainees; the latter bursary then became approximately €960 from 2000 to 2006 (after the introduction the Euro currency to Italy). Proper working contracts with an annual gross salary of €22 700 (a variable monthly amount of €1600–1700 after taxes) for this category of specialist trainees started in 2007. As a result, the Italian Supreme Court recently ordered the Italian government to pay compensation to Italian doctors training for medical specialities governed by the university authority from 1 January 1983 onward, in compliance with the Directives of the Council of the EU regarding stipends of doctors during postgraduate specialist training. The latter directives were accompanied by related decisions of regional tribunals. Unfortunately, these decisions concerned only doctors in training in secondary care specialties (that is, non-GP trainees), while Italian GP trainees currently still lack working contracts for their postgraduate clinical training in …

“Woman” in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women’s Citizenship?

Abstract Reproductive rights are constructed through a gender-conscious reading of already recognized human rights. We argue that despite increasingly strong recognition of reproductive rights in international human rights law by treaty-monitoring bodies and international tribunals, jurisprudence of European Court of Human Rights (ECtHR or the Court) reflects a limited understanding of women's experiences, does not adequately challenge gender stereotypes, and often ignores reproductive rights dimensions in standards it is setting, as well as narratives it is creating. Our analysis of Court's jurisprudence on abortion, home birth, non-consensual gynecological examinations, forced sterilizations, and assisted reproduction reveals that a woman's reproductive capacity continues to be her defining feature. Motherhood is seen as a woman's default life plan, her decisions regarding her body, health, and ultimately life, are perpetually under scrutiny and contours of her agency subject to medical professionals ' views, legislators and general public. INTRODUCTION In her much-celebrated novel The Handmaid's Tale, Margaret Atwood created a society where women's function was reduced to breeding, and those who failed or tried to escape from this labor were labeled as Unwomen and punished. (1) Atwood's 1985 book may have been science fiction, but story she tells is distressingly not too dissimilar from women's stories in twenty-first century--even in what is known as most progressive of regions: Europe. Indeed, when we study how woman has been constructed in human rights system that was founded upon European Convention on Human Rights (hereafter, the Convention), we find disturbingly essentialist gender roles. The ECtHR is judicial forum of most established regional human rights system in world, grounded in norms of European Convention on Human Rights. The Court's decisions are binding upon forty-seven member states of Council of Europe, and are implemented through domestic legislation and regulations. Moreover, ECtHR's jurisprudence is regularly looked to and cited by other regional tribunals, treaty-monitoring bodies that adjudicate cases, and domestic courts. (2) Thus, ECtHR sets standards in human rights law both within and beyond Europe and presents an important construction site for rights narratives, including reproductive rights narratives. As questions around women's reproductive health are often deeply contested, ECtHR arguably has an especially important role to play in fostering public learning regarding reproductive rights as integral to full participation of women in European society. Indeed, we argue in this Article that by using law to publicly and authoritatively proclaim and transform unacknowledged harmful experience into legally cognizable wrongs requiring redress, Court could play a potentially transformative role in narratives of women's citizenship in European context. (3) The Court has decided a number of cases concerning matters of human reproduction (for example, restrictive abortion laws and access to in vitro fertilization). Nevertheless, ECtHR itself has neither referred to reproductive rights as human rights (and accordingly forming a part of Convention) nor specified that cases about reproduction entail questions of reproductive and decisional autonomy that go beyond private sphere and could entail needed shifts in social norms as well as institutional practices. Through examining how Court has addressed specific issues relating to reproduction, we reflect on what ECtHR's jurisprudence tells us about narratives of women's identity and citizenship in Europe more broadly. Based on a systematic review of Court's jurisprudence from 2003 to 2015, we consider nineteen cases that Court has decided regarding issues of reproductive freedoms and entitlements: four abortion cases, (4) two cases concerning home birth, (5) six cases about assisted reproduction, (6) three forced sterilization cases, (7) three forced gynecological examination cases, (8) and one landmark domestic violence decision. …

Regional Complementarity: An Interpretation of Article 17(1)(A) of the Rome Statute

The Kenyatta, Gaddafi, and Gbagbo decisions at the International Criminal Court (the ICC or Court) have brought increased attention to the requirements of the principle of complementarity under Article 17 of the Rome Statute. Little attention has been paid to a related admissibility issue: how regional (and sub-regional) tribunals fit with Article 17. This article argues that a genuine prosecution by a lawfully constituted regional tribunal should be seen as the exercise of jurisdiction by the state such that the case is inadmissible before the ICC. This conclusion follows from a proper understanding of the legal nature of the relationship between states and regional tribunals and the contextualized application of the principles of treaty interpretation enshrined in Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Moreover, it is consistent with the values underlying the central principle of complementarity and makes sense as a matter of policy.

Judicial Interpretation and Indigenous Peoples’ Rights to Lands, Participation and Consultation. The Inter-American Court of Human Rights’ Approach

This article proposes a critical legal analysis of the jurisprudence of the Inter-American Court of Human Rights regarding indigenous peoples’ rights to lands, participation, and consultation. It focuses on the role that cultural diversity as a legal standard has played in the recognition of the indigenous peoples’ right to consultation and participation in all matters that directly affect them, as a guarantee for the protection of their right to communal property and natural resources traditionally used, and for safeguarding their cultural identity. In analysing the jurisprudence of the Inter-American Court, special attention is paid to the interpretative methods applied by the regional tribunal, and to the manner in which a non-restrictive and ‘culturally friendly’ interpretation of conventionally protected human rights has contributed to the enlargement of their scope of protection, and to their enjoyment by one of the most marginalized and excluded sectors of Latin-American societies.

The Role of Regional Tribunals in Treaty Interpretation (the Trend of East African Court of Justice (Eacj) in Treaty Interpretation

.With increasing/ proliferation of international trade under the regional trading arrangement, many regional blocks has realized the establishment of the regional courts and tribunals for the interpretation, settlement of disputes and other legal opinions which assist in attainment of the regional objectives. With regards to East African Community (EAC) the presence of East African Court of Justice (EACJ) as one of the East African Community organs. Among other functions of the EACJ but the role of treaty interpretation has been seen as one of the dominant role of the EACJ in its daily undertakings. Many experts has noted and trends in international trade law indicates the increasing dominant role of treaty interpretation in dispute settlement than other roles in various international, regional courts and tribunals which is largely attributed by many factors including “the Lack of predictability in legal obligations, Uncertainty and possibility of divergent expectations and continuously erosion of rights negotiated treaties among parties.

The Challenges of the Judicial Dialogue in Mercosur

Since its inception, Mercosur has opted for a non-coercive and diplomatic dispute settlement system. State Parties still oscillate between institutionalization based on the European model and the maintenance of an arbitral system for the settlement of disputes. This choice is linked to the possibility and limits of judicial dialogue in Mercosur. In this context, this article aims to analyse the existing horizontal ‘dialogue’ between Mercosur judges and international judges, on the one hand, and the vertical dialogue between Mercosur judges and national judges, on the other hand. In terms of the horizontal ‘dialogue’, the objective is to evaluate the use of precedents and references to other international, regional, and sub-regional Tribunals. As for the supposed vertical ‘dialogue’ between Mercosur judges and national judges, this article analyses the interaction with national courts through the cooperation mechanism established by advisory opinions (which is similar to preliminary rulings under the auspices of the eu), as well as via judicial ‘dialogue’ with representatives of national supreme courts of Mercosur State Parties. The importance of the advisory opinion mechanism is well known, as is the preliminary ruling mechanism in the European Union. Similar to the eu, several important principles of Mercosur law have been laid down by advisory opinions.

Addressing Human Rights in the Court of Justice of the Andean Community and the Tribunal of the Southern African Development Community

The article compares how the regional tribunals of the Andean Community (CAN) and the Southern African Development Community (SADC) have dealt with human rights issues in order to explore options for South-South judicial cooperation through adjudicative cross-fertilization, while taking into account specificities that characterize both regions. In doing so, focus is placed on four elements: a) the scope of human rights covered by each of the regional tribunals; b) the locus standi of individuals before the tribunals; c) the added value of the regional tribunals; and d) the restrictive role of politics in the functioning of the tribunals.

Rituals of Prosecution: The Roman Inquisition and the Prosecution of Philo-Protestants in Sixteenth-Century Italy, by Jane K. Wickersham

Rituals of Prosecution: The Roman Inquisition and the Prosecution of Philo-Protestants in Sixteenth-Century Italy, by Jane K. Wickersham. Toronto, Ontario, University of Toronto Press, 2012. viii, 430 pp. $80.00 Cdn (cloth). Cloaking one's religious identity was a common practice in early modern Europe --conversos and crypto-Jews in the Iberian Peninsula, Christian sailors and slaves turned Turk in the Mediterranean, and Protestants in Catholic lands all populated the religious landscape of the early modern world. In Catholic territories--where religious orthodoxy and solidarity were considered important by the Church and its leaders--institutions had been created to discover what John J. Martin has called hidden enemies in the sixteenth-century Venetian context. These institutions--both the Spanish and Roman Inquisitions--were tribunals created with the goal of detecting and rehabilitating heretics and, failing that, purging the body politic of the faithful of religiously diseased members. Scholars have long studied the Inquisition from a diversity of perspectives ranging from the legal and doctrinal theories and practices of inquisitions and their staff, to the religious beliefs of heretics, and even recently--as seen in the work of Richard Kagan and Abigail Dyer--to recreating the lives of the forgotten people of Europe. Jane K. Wickersham, in this original study of the legal practices and religious concerns of the Roman Inquisition, takes the novel approach of examining ritual practices as the basic criteria for both Inquisition manual writers and various regional tribunals for detecting Protestants in their territories. Her central argument is that, by the mid-sixteenth century, both in theory and in practice --that is in inquisition manuals and in the various trials of the actual tribunals--ritual practices had become the main means of identifying philo-Protestants, Italians holding religious and doctrinal views similar to those of Luther and other prominent reformers to the North. Failure to attend Mass, take part in penance, observe fasting times and a host of other rituals became de facto admissions of guilt. A second argument that Wickersham makes is that the Roman Inquisition's legal practices themselves should be seen as ritual. This argument is less successful than the first, primarily because it is pushed to the background and never receives a full theoretical investigation as does the primary thesis. In the first chapter, Wickersham lays down her working definition of philo-Protestantism in sixteenth-century Italy. Rather than seeing it as entirely influenced by specific currents of Protestantism and reform from the North--despite the Roman Inquisition's blanket use of the term Luterani to describe heretics--she finds that Italian Protestantism was fed by both homegrown and trans-Alpine currents of religious thought and that it was characterized by a diversity of belief and practice rather than adhering to any one doctrine or confessional system. What held this disparate group--both religiously and geographically disparate--together was their criticism of Catholic ritual as deterrent to true faith. Some of them refused to take part in any ritual whatsoever, whether Mass, penance, or observing Lenten fasts, while others took part in the rituals while meeting in secret to read the Bible and receive instruction in Protestant doctrines. …

What a Pity! Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International Human Rights Law

Over the course of the past half century, some significant progress has been made in creating accountability mechanisms that have helped to serve human rights. Five are analyzed here: (1) the evolution of the European Court of Human Rights (ECHR), (2) Alien Tort Statute litigation, (3) universal jurisdiction, (4) the “terrorism” exception under US sovereign immunity law, and finally (5) the establishment of regional and international criminal tribunals. However, two related international law principles—sovereign immunity and state responsibility—stand squarely in the way of achieving greater human rights protection. This article analyzes an ECHR case (Al-Adsani v. United Kingdom) that could have changed much of this almost immediately. However, in an extraordinarily close (9–8) vote, the court upheld the principle of sovereign immunity—even when this serves to protect a state that engages in torture, which is a jus cogens norm. One of the dissenting judges in this case exclaimed: “What a pity!” But the missed opportunity to protect human rights is more than just a pity. Rather, it is contrary to why international human rights law exists in the first place. The article closes by calling for the use of much different standards for assigning state responsibility.