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1 Introduction, IV The Book’s Structure and Methodology »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

Contents »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

Dedication »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

6 Due Process and Judicial Protection »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
Article 8, the Convention’s primary due process provision, is called “Right to a Fair Trial.” However, the Article goes far beyond trials and even judicial matters, regulating proceedings of “any public authority, whether administrative, legislative or judicial, which, through its decisions determines individual rights and obligations.” These broad protections have become more expansive still through numerous judgments of the Inter-American Court. The Convention’s Article 25, Right to Judicial Protection, primarily referred to amparo—a “simple and prompt” judicial recourse to protect “fundamental rights” recognized in either State law or in the American Convention, and includes the writ of habeas corpus. Yet the Court has expanded the remedies of Article 25 beyond amparo, and the Article’s full content has become unsettled. This owes, at least in part, to the Court’s frequent method of combining Articles 8 and 25 in its judgments; the practice has hindered the latter provision’s meticulous development.

2 Equality »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
The Convention’s Article 24 establishes two critical, autonomous rights: the right to equality before the law and the right to equal protection of the law. The Inter-American Court has declared equality to constitute a jus cogens principle, which would render it binding for all States, and expanded State obligations in this area. The Court broadly condemns many forms of discrimination, and promotes affirmative action programs. However, its standards of review and even standards of proof for differential treatment remain uncertain. Further, the Court’s interpretation of Article 24 and Article 1, both as separate concepts and in relation to each other, has been inconsistent and, more recently, problematic. The Tribunal now considers Article 24’s scope to be more limited than that of the non-discrimination provision of Article 1(1). Among other objections, this approach conflicts with the Court’s prior jurisprudence, which in turn reflected international understandings of equality principles.

7 Freedom of Expression »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
The Convention was designed to provide vibrant guarantees for the freedom of thought and expression. Among treaties, it contains the only prohibition against prior censorship and features an innovative provision on “indirect” restrictions to expression. Interpreting Article 13, the Court became the first international human rights tribunal to establish the right to access State-held information. The Court has issued several decisions that condemned censorship and disproportionate sanctions on expression, protecting the Article 13 rights of individuals and society at large. In 2008, however, the Court began to allow more constraints on expression and to require more responsibilities of speakers. We argue that the Court must change its recent approach and prohibit criminal sanctions on expression that are used by States to protect honor and reputation. The Tribunal also must develop clear definitions and rules concerning any sanctions on speech, with the goal to promote vigorous public debate.

4 Humane Treatment »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
Whereas other instruments only listed prohibited forms of conduct, the Convention’s Article 5 was innovative for general human rights treaties because it established an autonomous right: “Every person has the right to have his physical, mental, and moral integrity respected.” Later, other treaties followed this example and declared rights to personal integrity and human dignity. Over the last two decades, the Inter-American Court—drawing from regional human rights instruments and the jurisprudence of the European Court and the Inter-American Commission—has delivered a number of authoritative decisions. These judgments have served to expand conceptions of torture and ill-treatment, broaden State obligations, condemn gender violence, and provide wide-ranging redress to victims. Nevertheless, the Court has not always been consistent in its approaches to Article 5, and more recently has shown a troubling reluctance to find torture and other violations in certain cases.

Index »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

1 Introduction, II The Inter-American Human Rights System’s Impact, Major Institutions, and Legal Instruments »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

1 Introduction, III Key Developments and Critiques of the Inter-American Jurisprudence »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

3 Life »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
The American Convention, in its Article 4, is the only human rights treaty that expressly determines the point from which the right to life must be protected: “in general, from the moment of conception.” The Court has found arbitrary deprivations of life in numerous contexts, such as cases involving the death penalty, disproportionate police or military force, and internal armed conflicts. The Inter-American System has been a pioneer in the conceptual development of the crime of forced disappearance. Inter-American human rights law demands that States adopt numerous positive measures to safeguard life, including legislative action, prevention of violence, and the investigation and punishment of crime—all according to the due diligence standard. At times, the Court’s judgments blur positive and negative State duties in this area. The Tribunal has recognized rights to health, education, culture, food, and clean water as components of the right to life.

Appendix List of Inter-American Court Judgments by American Convention Article: Articles 2–26 »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

1 Introduction, I Overview of Book »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza

5 Personal Liberty »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
The Convention’s Article 7 establishes the general right of all persons to not be deprived illegally or arbitrarily of their liberty; in addition, it contains specific protections for individuals who have been deprived of their freedom. To activate the protections of Article 7, the Court does not require a minimum duration or specific location for the detention. Consequently, the Tribunal has found violations to Article 7 in a wide range of detention scenarios. We consider the Court’s current method of interpreting legality and arbitrariness to be flawed in certain respects. For example, unlike other international human rights tribunals, the Court often considers only the relevant domestic law, and not international law, in its assessment of a detention’s legality. When the Court narrows its legality inquiry to the letter of national law, international human rights may be limited or distorted, and the State’s discretion to restrict liberty may be increased.

8 Property »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
Among regional treaties, the Convention’s Article 21 provides a strong formulation of the right to property. The Court has elaborated a broad notion of property, including tangible and intangible property, as well as private and communal property. The Tribunal’s property case law has especially influenced international jurisprudence on indigenous rights. The Court’s 2001 ruling on an indigenous right to communal property was a first for an international human rights court. Throughout the Americas, States and private companies have extracted natural resources and developed commercial projects on lands belonging to indigenous peoples and Afro-Latin communities. In response, the Court has required that States comply with specific “safeguards”; however, the protections are easily evaded. To better defend vital ancestral lands and resources, we argue that the Court should adopt a robust right-to-life approach, rather than relying upon the more modest right to property in these cases.

9 Reparations »

From: The American Convention on Human Rights: Essential Rights
Thomas M. Antkowiak, Alejandra Gonza
The Court’s extensive reparations are hailed as trailblazing. Interpreting the Convention’s Article 63, the Tribunal’s remedial approach comprises measures of restitution, rehabilitation, satisfaction, and guarantees of non-repetition, in conjunction with pecuniary and non-pecuniary damages. The Court is the only international body with binding jurisdiction that has consistently ordered this full range of reparations. Especially noteworthy is the Tribunal’s focus upon non-monetary remedies. Of course, the Court’s reparations are not without their flaws. As for non-monetary remedies, the Court at times could require more intensive victim engagement in the design and implementation of reparations. Yet, above all, the Tribunal’s inconsistent monetary reparations invite scrutiny. Particularly in the judgments involving groups, such as indigenous communities, the Court does not always respond to substantiated claims for monetary damages by both individuals and collectivities. If it neglects well-founded requests for material or moral compensation, the Court will compromise both individual and collective rights.