Global Human Rights Defence

GHRD Interview with Brazilian expert about the Inter-American system of human rights

Prof. Siddharta is a professor of Constitutional Law and Human Rights at the Federal University of Rio de Janeiro (UFRJ), a visiting professor of the Postgraduate research center of the Fluminense Federal University (UFF) and coordinator of the Inter-American center of the Federal University of Rio de Janeiro (UFRJ). He holds a Phd on International Law from the Rio de Janeiro State University (UERJ),  a Master’s degree on Constitutional Law and an LLB on Law studies from the Fluminense Federal University. Prof. Siddharta also works as a lawyer in Brazil.

On May 10, 2021, the ‘International Justice and Human Rights’ team members, Thaís Ferreira and João Victor Stuart, received Prof. Siddharta Legale (Professor of Constitutional Law and Human Rights at the Federal University of Rio de Janeiro) for a discussion on the Inter-American system of Human Rights protection. The GHRD’s members engaged in an interesting conversation with the Brazilian professor about one of the most important regional systems of human rights protection in the world. The Inter-American Organization was founded in 1948 along with the creation of the American Declaration of Human Rights and the Charter of the American States (Sistema Interamericano de Proteção – Secretaria da Justiça e Cidadania, 2021). 

In 1969, the member States of the Inter-American Organization elaborated the Inter-American Convention on Human Rights, mostly known as the San Jose agreement. This is the main binding instrument of the system whose aim is to consolidate an international legal protection of human rights in the American States (Sistema Interamericano de Proteção – Secretaria da Justiça e Cidadania, 2021). 

As of today, the States that have ratified the American Convention on Human Rights are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay. (Which States Are Part of the American Convention, 2021)

The Inter-American System established two institutions to fulfil its mandate. The first one, the Inter-American Commission of Human Rights, was established in 1960 and its headquarters are based in Washington D.C, USA. The Commission is responsible for monitoring the respect of the Inter-American Convention on human rights in the member States, making recommendations and issuing adequate measures for the member States to halt human rights violations and examining denounces of violations of the Convention in the signatory States (Sistema Interamericano de Proteção – Secretaria da Justiça e Cidadania, 2021). 

Headquarters of the IACHR in Washington D.C – Source -rimestream –https://primestream.com/casestudy/broadcast/oas/ 

The second one, the Inter-American Court of Human Rights, was established in San José, the Capital of Costa Rica in 1979 (History of the Inter-American Court, 2021). The Court resolves contentious cases and supervises judgments, while at the same time, it exercises an advisory function, in which it provides interpretation and explanations about human rights concerns and legal debates related to the American Convention (What Is the Inter-American Court of Human Rights and What Are Its Responsibilities? 2021). Lastly, the Court can also order provisional measures to avoid irreparable damage to people, in cases of extreme gravity and urgency (What Are Provisional Measures of the Court ?, 2021). 

Judges of the Inter-American Court – Source – International Justice Resource Center: https://ijrcenter.org/2016/10/26/inter-american-court-advisory-opinion-analyzes-rights-of-legal-entities/ 

How does it work for someone to communicate a human rights violation to the Inter-American System?  Can also people submit a complaint before the system? Or is it something exclusive for States? Which is the organ responsible for receiving these complaints? How can social and civic organizations bring the demands of marginalized and vulnerable communities into the Inter-American System?

To report a violation of human rights in the Inter-American System, firstly, it is necessary to adhere to the requirements of article 46 of the American Convention, which are: (i) exhaustion of domestic remedies, which means that the petitioner has to report the violation firstly to the domestic system; (ii) a time break of at least six months from the final domestic decision, and (iii) inexistence of other international process. This last point means that the petitioner must not choose another system of human rights protection in addition to the Inter-American, such as the UN protection system, for example. Such denunciation must be forwarded to the Inter-American Commission on Human Rights, by any natural person or legal person recognized in at least one of the member states’ jurisdiction. 

Social movements, for example, may join with NGOs, such as Global Justice, or Human Rights Clinics, such as the Inter-American Human Rights Clinic at UFRJ, to bring complaints of violations of vulnerable groups to the IACHR.

Which kind of remedies and redressing mechanisms are offered by the Inter-American System ? 

This is a very important question. There are mainly two types of reparations: the pecuniary, when the Inter-American court condemns states to pay money to the victims of human rights violations, and non-pecuniary, when the Court demands that states create new public policies as a way to redress the victims. The non-pecuniary reparations are more difficult than simply paying the victims. 

Non-pecuniary reparations are described by article 63 of the Convention as a justice reparation, but providing justice through a decision is hard so that the states must make additional efforts in designing public policies that can give this sense of justice to the victims, such as educational measures, or medical and psychological treatments for surviving victims and their families. The high level of violence and inequality in Latin-America makes this second model of reparation more necessary in the continent, but also more challenging. For this reason, the Inter-American Court became such a relevant agent of transformation of Latin-American context. 

How do you assess the impact that the Inter-American system has been creating in the Latin-American Continent? 

According to my Phd thesis, the Inter-American system, based on the work of both the Inter-American Commission and the Inter-American Court of Human Rights, has reconfigured the understanding of human rights throughout America, with its decisions cited, for better or worse, by a large part of the Constitutional Courts. 

I also highlight four major changes in the Americas motivated by the jurisprudence of the Inter-American Court: the cycle of Honduran cases strengthened the necessity of the local government to combat the cycle of forced disappearances of people by reforming domestic policies that favoured this crime. The Peruvian case cycle has unravelled the peculiarities of access to inter-American justice by clarifying states’ obligations to secure the right to a fair trial (Art. 8-American Convention on Human Rights) and the right to judicial protection (Art 8-25). The Colombian case cycle established parameters against massacres and internal armed conflicts and also reinforced internal protections to minorities and vulnerable groups, such as children and women. Finally, the cycle of Brazilian cases gave greater measures to vulnerable groups, such as persons deprived of their liberty, and provided more appropriate human rights standards regarding prisoners’ rights. 

When it comes to Brazil, how do you assess the influence and impact of the decisions of the Inter-American Court and Commission over the jurisprudence? 

Regarding the Inter-American Court’s influence in the Brazilian jurisprudence, we have both advancements and setbacks. Until 2004, the Brazilian Supreme Court had never mentioned any decision of the Inter-American Court, but after this year, it began to mention the Court’s decision, but not always saying that Brazil would follow them. 

However, as I said, there is a cycle of Brazilian cases aimed at vulnerable groups. The decisions of the Inter-American Court and the Commission have great influence, either directly or indirectly, in the protection of these groups in Brazilian territory. An example of this can be found in the Commission’s decision on the Maria da Penha case, which ended up propelling the Maria da Penha Law against various forms of domestic violence. Another example, this time related to the jurisdiction of the Inter-American Court, concerns the case of Urso Branco Prison which reduced the overcrowded and human-degrading conditions of the prison by building another one. 

Why have Canada and the USA not ratified the Inter-American Convention on Human Rights yet? 

These are two different situations: Canada has not signed the American Convention on Human rights. The United States of America signed it, but has not ratified it yet. Both decisions carry out political motivations, but we need to examine each one of them separately. This weakens the scope of human rights in our region, and, above all, weakens the jurisdictional impact of the Inter-American Court of Human Rights.

Canada gave an official answer for not having signed nor ratifying the Convention in three major topics. It highlighted the little impact from the ratification of the American Convention on Canadians, on account of its own Charter of Rights and Freedoms. Basically, this internal instrument would be enough to secure the protection of Canadians’ human rights, which I do not agree with;  this is a political reason. Canada also flagged that ratifying the Convention would bring the jurisdiction of the Court to Canada. Here, there is an important debate over the international law clause “Raul Fernandes”, which says that no country is obliged to accept the jurisdiction of an international tribunal, but if they do, they must not disrespect the decisions of this Court. There was a specific commission to study the possibilities of adherence to ACHR by Canada, however, for reasons of domestic policy, the government preferred not to sign and ratify the treaty.

The USA, for its part, does not offer any official justification for its non-ratification of the ACHR, despite having signed the treaty on January 6, 1977, at the beginning of Jimmy Carter’s government. Personally, I do not understand that because the Inter-American Commission is based in the USA’s capital. I think this involves some level of prejudice, once that the USA would not accept the jurisdiction of a Court that is based in Latin America. 

Despite the tendency that more and more American countries are adhering to the ACHR and to the jurisdiction of the Inter-American Court, as has been happening in recent decades, it is unlikely that both Canada and the USA will ratify the ACHR in the coming years.

References

History of the Inter-American Court. (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/historia.cfm?lang=en

Sistema Interamericano de Proteção – Secretaria da Justiça e Cidadania. (2021). Justice and Citizenship. https://justica.sp.gov.br/index.php/observatorios/direitos-humanos/sistema-interamericano-de-protecao/#:%7E:text=O%20Sistema%20Interamericano%20teve%20in%C3%ADcio,dos%20Estados%20Americanos%20(OEA) 

What are provisional measures of the Court ? (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/que_son_medidas_provisionales.cfm?lang=en 

What is the Inter-American Court of Human Rights and What are its responsibilities? (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/que_es_la_corte.cfm?lang=en

Which States are part of the American Convention. (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/que_es_la_corte.cfm?lang=en 

Leave a Comment

Your email address will not be published.

Mandakini

Coordinator - Tibet Team

Mandakini graduated with honours from the Geneva Academy of International Humanitarian Law and Human Rights. Her team analyses the human rights violations faced by Tibetans through a legal lens.

Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
(Europe)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
(Africa)

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.