Thursday, March 7, 2019
Inter-American system of human rights protection Essay
homophile Rights are certain inherent, inalien suitable, immutable, inviolate freedoms and seriouss of man which no one push aside take away. These include the right to life, liberty, meetity and dignity. The fall in posits of America recognizing these rights established the overwhelm Ameri evoke system of mankind Rights by adopting the Ameri stick out solution of the Rights and Duties of Man and the Ameri rout out Convention on serviceman Rights. Pursuant to the adoption of these instruments the cloak American fit on Human Rights and the Inter American chat up of Human Rights were established to promote and cheer Human Rights of individuals.PART A1. It is pertinent to none that the Inter American military mission on Human Rights primarily seeks to promote consciousness about Human Rights amongst the passel of the country. Its functions mainly include receiving complaints, analyzing and investigating them. It has powers of observation and appeal of data regarding H uman Rights violations in the member States. It can also witness on site and conduct seminars and meetings to promote awareness regarding Human Rights. When a complaint is referred to the armorial bearing, it can later on conducting its investigation and analysis publish a enshroud and send it to the State.This reputation is recommendatory in nature and not mandatory. therefrom the direction can tho recommend that the State take collectable notice of the human rights violations and take appropriate reparatory measures. In the alternative, the rush can seek mentation from the Inter American coquet of Human Rights. So also, in the resign illustration, the Commission has no powers to enforce the law placed down by the State of conscientious objector but can only request the State to take precautionary measures so as to construe that human rights are not infringed upon. 2.With respect to the second interrogative mood, it is seen that as per oblige 2 of the Statute of the Inter American flirt of Human Rights, the Court has adjudicatory legal power vis a vis a human rights violation brought in the first place it by the Commission or whatsoever Member State of the organisation of American States. The said Article refers to Articles 61-63 of the American convention on Human Rights which clearly state that the Court can tack together the State to take into account the human being to enjoy his human right and also order for either monetary or non monetary compensation for the injury so caused.Such an order passed by the American Court would be top on the State. The provision further clarifies that in eluding an act or omission on the part of the State would cause irreparable acquittance to the soulfulness, the Commission can take much(prenominal) doubtful measures to ensure that the irreparable loss is not caused. It would thus transpire that in the present slick, the Inter American Court of Human Rights can enforce the law requiring the Colorado State police to arrest an individual disobeying the restraining order. 3. In the present theatrical role confused provisions of the various human rights enactments are go against.The Commission can primarily seek to apply Articles 1, 5, 6, 9, 18 & 24 of the American Declaration of the Rights and Duties of Man. Article 1 of the American Declaration states that all persons pick up equal right to life, liberty, and personal security. Article 5 & 6 deal with a persons right to treasureion of self as comfortably as family. Article 9 dialogue about a persons right to inviolability of home while 18 & 24 talks of fair trial and the right to approach the court for remedy. A brief reading of the orison tells us how each of these rights let been violated by omission to act on the part of the State.These articles are applicable still if the united States have not ratified this Declaration. Further Article 11 of the American Convention on Human Rights which deals with a per sons right to protect his honor and home and also gives him the right to seek judicial remedy in case of infringement is anformer(a) provision that the Commission can consider and apply to this particular case. According to the Inter-American Convention on hale Disappearance of Persons, a duty is laid on the State to punish those persons or their accomplices who commit the crime of forced disappearance of others.This clause has been violated by the husband of the imploreer who allegedly kidnapped their daughters and the police department can be held liable as they stood mute spectators to the whole thing. Article 7 of the Convention of Belem do Para (the Inter-American Convention on the Prevention, Punishment, and obliteration of Violence against Women) condemns all forms of violence against women and seeks to punish such persons who have committed such crimes by enacting priggish laws and proper investigation.The Convention also requires that the State should enact and adopt such laws which will help refrain a person from committing such acts of harassment and also ensure that persons who are victims of such violence are assumption timely and proper audience. This is a right guaranteed to all women and more so to women who are victims of internal violence. The police in this particular case having full knowledge of the fact that the petitioner was a victim of domestic violence chose to ignore her pleas and thereby ignore this provision. 4. preceding to considering the kind of legal power that the Inter American Court of Human Rights would have in this present case, it is necessary to list the basic kinds of legal power useable to the Court in general. Jurisdiction of the Inter American Court is mostly classified into Provisional, Advisory and Adjudicatory or agonistical Jurisdiction. In provisional legal power, the Court has the power to act in situations that are grave and urgent and require immediate intervention without which grave harm shall b e caused to the victim (Buergenthal, 1982, p.241).In Advisory Jurisdiction the Court can give its opinion on the various provisions of the Convention as well as other treaties and also opinionate on the compatibility of the domestic law with whatever treaty (Buergenthal, 1982, p. 242). In order to avail the adjudicatory or contentious jurisdiction is concerned, it is necessary that the member States subject themselves to the jurisdiction of the Inter American Court (Pasqualucci, 2003, p. 88). It is also necessary for the Convention or treaty in question to grant the jurisdiction to the Court.An illustration to explain this point would be that the Inter American Convention on the Prevention, Punishment and Eradication of Violence Against Women really clearly states that the Commission has only advisory jurisdiction and no contentious jurisdiction in respect of complaints filed under its provisions (Pasqualucci, 2003, p. 91). The jurisdiction clause also states that the Inter Amer ican Court cannot naturally assume the business office of an appellate authority. It cannot pull right all wrong close of the bailiwick courts.However, if there is a gross violation of the human rights enshrined in any treaty and if this gross violation were to cause irreparable harm to the individual, thusly the Inter American Court may interfere and record that the proper procedures as laid down in the treaties were not followed. In the present case, the united States by virtue of having ratified the American Convention, has devoted people the individual right to approach the Commission for violation of human rights.However, this jurisdiction in advisory in nature and not adjudicatory as it has not yet subjected itself to the jurisdiction of the Inter American Court. Thus any person through the Commission can seek the advisory jurisdiction of the Inter American Court even if the Member State has not subjected itself to the jurisdiction of the Court (Buergenthal, 1982, p. 2 44) 5. Procedurally, the Commission on receiving a petition shall ab initio register it and see if it has complied with all the rules of procedure and if the petition does not honor whence the Commission will send it back to the petitioner so as to ensure compliance.Once the petition conforms to the rules past the Commission shall then send relevant parts of the petition to the State for its reply, for which the State is given two months time. However, in serious and urgent cases, the State is asked to respond immediately. This is do to ensure the veracity of the petition and to ensure that the petition still subsists. The counseling may also require the State to present its observations on the admissibility and merits of the case at hand.Once the observations of the parties are submitted or the time period given to each party has lapsed, the Commission will verify the merits of the case establish on the facts before it and decide whether to admit it or reject it. In the pres ent case too the Commission should first satisfy itself as to the compliance of all the rules of procedure and then seek observations from the State and other parties concerned. 6. The Commission will then confirm as to whether the petitioner has half-hearted all the available domestic remedies.However, in cases where the domestic legislation does not provide for due process of law or where the petitioner is refrained from prosecute domestic remedies then the above provision does not hold true. The Commission has to ensure that the petition before it has been filed within six months of receipt of the decision of the domestic remedy. In this case the petitioner has exhausted all the likely domestic remedies and has not been successful in the same. The Supreme Court of the United States has also rejected the petition of the petitioner and has passed its net judgment in the matter.The Commission should then decide on the admissibility of the petition by context up a working group. In the present case, it is seen that the Commission has held the petition admissible. When the Commission finds a petition admissible it creates an admissibility report that is made worldly concern and the case is then registered and the parties are notified of the same. After the case has been registered, the Commission invites supernumerary observations in writing from all parties concerned. A time limit for submitting these observations is compulsive by the Commission.In some cases, the Commission can also call a consultation to enable the parties to present their points of view. In this case too, the Commission has opened the case and the parties are informed about the same. Additional observations have been requested from the parties and the Commission has in fact convened a hearing. In this case, the United States government has responded by stating that it has taken proper and equal measures to combat domestic violence and that the remedies in the domestic judicial syst em are adequate to tackle the problem.In the hearing the Petitioner will be able to present her case before the Commission in person. After hearing the case of both sides and also after going through the indite observations submitted by both parties, the Commission will deliberate on the merits of the case and formulate a report. 7. The first document that the Commission publishes in response to a case is the admissibility report wherein it admits the case and registers it. This report has already been print by the Commission and has been sent to the parties concerned.The Commission has then convened a hearing on the issue and will deliberate on the case after the hearing. The next important document that the Commission publishes is the Preliminary report on the merits of the case. This report contains the preliminary observations and the recommendations of the Commission. 8. If the Commission feels that there is no violation, then the report is published and sent immediately to a ll parties concerned. In case the Commission feels that some provisions have indeed been violated then a preliminary report is made and sent to the State on with the recommendations proposed by the Commission.9. In case the State complies with the recommendations given in the preliminary report, the Commission will notify the petitioner as to the same. However, in cases where the State does not comply with the same, the Commission can approach the Inter American Court for adjudication. However, in the present case as the United States has not subjected itself to the jurisdiction of the Court, the said remedy is not available to the Commission in case of non compliance.In the present case, the Commission should deliberate on the observations sent by the parties, investigate on site to determine the veracity of the facts, interview the various concerned individuals and then send its preliminary report to the State along with its recommendations. If the State fails to comply with the same within three months of it being sent, the Commission then has to issue a final report that contains its opinion, final conclusions and final recommendations.The Commission should then send it across to all parties concerned and make a note of it in its Annual report. The Commission should take active steps in terms of follow up to evaluate the actual compliance of the recommendations by the parties. 10. In this present case, if the Commission publishes its preliminary report wherein it holds that there has been violation of human rights and recommends certain precautionary measures to the State then it would mean that the petition has succeeded partially.By partially, it is meant that the violation has been recognized by the Commission. However, for the petition to succeed completely, the State has to comply with the recommendations given by the Commission. If the State refuses to charter the recommendations of the Commission, then the petition would have failed as the petiti oner has not achieved any major reliefs but has only obtained a theoretical order that envisages the paragon situation vis a vis human rights.
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