The Best Guarantee for an Inviolability of Human Rights Is Applying to International Instruments

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Written By RobertMaxfield

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The goal of the article is to show that human rights of the nationals of every state are better protected then when such rights have a support at the International level. To such a support in Europe (more closely of it there will be enlightened in the next article after this one) is there referred an activity of the European Convention on Human Rights (the European Convention hereinafter) with such its Convention organs as the European Court of Human Rights( the European Court hereinafter). In America such a support is exercised by the American Convention on Human Rights (The American Convention hereinafter) with such its Convention organs as the Inter-American Commission of Human Rights (the Inter-American Commission or the Commission hereinafter) and the Inter American Court of Human Rights (the Inter-American Court or the Court hereinafter).

: The American Convention with its organs – The Inter-American Commission and the Inter-American Court are the International Instruments applying to which nationals of countries of the Organization of American States (OAS hereinafter) enjoy the comprehensive protection of their human rights and freedoms.

Both the aforementioned Conventions foresee a certain set of rights such as: Right to life; Right to Personal liberty; Right to a Fair trial; Right to Privacy; etc. But these instruments are effective only for those states which did ratify these Conventions. Starting from the moment of such a ratification this or that country becomes a party to the Convention as the state-party. It means that a national of a state-party, for instance, of the Organization of American States which recognized competence of the Inter-American Commission may lodge with this Commission his (her) petition containing a complaint that the state of his (her) residence has committed a violation of his (her) rights or freedoms envisaged in this American Convention. By becoming a party to the American Convention, the appropriate state is deemed to have accepted the jurisdiction of the Inter-American Commission to examine private complaints lodged against that state. In dealing with complaints that are not rejected as inadmissible, the Commission examines the allegations, seeks information from the government concerned and investigates the facts. As part of this process, the Commission may hold hearings at which the government and the petitioners do participate. The Commission must also place itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for human rights recognized by the American Convention on Human Rights (Article 48(b). If a friendly settlement is obtained, the Commission prepares a report that describes the facts of the case and the settlement (Art.49). This report is transmitted to the General Assembly of the OAS for publication. If the parties are unable to reach a friendly settlement, the Commission draws up a report, setting out the facts and the conclusions it has reached about the case (Article 50 of the American Convention on Human Rights). The Commission also draws up a set of recommendations concerning an adjustment of the violations by the state-party. The report with these recommendations is transmitted to the states concerned. These states have three months within which to comply with or react to the recommendations of the Commission. During that period the case may also be referred to the Inter-American Court by the Commission or the interested states. Article 62 of the American Convention delimits this Court’s jurisdiction by the wording saying that a State Party may upon depositing its instruments of ratification or adherence to this Convention, or at any subsequent time declare that it recognizes as binding and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention. It means that certain judgments of the Court have to be fulfilled by the states, officials of which had committed violations of human rights. Article 62 of the American Convention states that only States – Parties and the Inter-American Commission shall have the right to submit a case to the Inter-American Court.

As a substantiation of all this, let’s refer to such an example as the judgment in the case of “Atala Riffo and daughters v. Chile” The case concerns the facts as they follow:
In 2005, Atala moved in with her female partner in Santiago. Her ex-husband took offense to this, although he admitted doing so only for the purpose of revenge. He took it to the courts since their children would be residing with his ex-wife’s partner.

In the Republic of Chile it is customary for the mother of children to get full and sole custody of their children automatically. However, the courts agreed that it was best for the father to maintain custody due to the mother’s “perversions” in this particular case. Atala Riffo continually appealed until reaching the Supreme Court of Chile which in 2004 ruled on the basis that the children would suffer psychological harm living with Ms. Atala and her partner and that they would become confused about gender roles and suffer from discrimination and isolation. The Court then nullified her material rights and gave custody to the girls’ father. As of 2005, Atala had exhausted her legal options with Chile; consequently, she took her case to the Inter- American Commission in Washington D.C. On July 23, 2008, the Inter-American Commission approved its admissibility report on the case.

On 21 March 2012, on the motion of the Inter-American Commission, the Inter-American Court handed down a ruling overturning the Chilean Supreme Court’s 2004 decision denying judge Karen Atala custody of her children in favor of her ex- husband. The Inter-American Court also held that the state of Chile would have to pay to Atala compensation and legal fees. It also recommended for the State of Chile to adopt legislation, policies, programs directives that prohibit discrimination on the basis of sexual orientation, including in the administration of justice. The Government of Chile stated it would respect the decision by the supra national authority. Furthemore, Atala was awarded US $50,000 in compensation and $12,000 in court costs.

As we see such international human rights protective instruments can be successfully used only by the nationals of those states which ratified the American Convention and which recognized the Competence of the Inter-American Commission both as the binding jurisdiction of the Inter-American Court.

In America almost all its states have recognized these competence and jurisdictions. So, one may say that human rights and freedoms of the nationals of these states have a thorough protection at the International level, that is that people of these countries enjoy comprehensive protection of their rights and freedoms. Unfortunately we can not say so about the nationals of the United States of America. It is far from believable to say that all people of the USA are satisfied with these or those judicial decisions including the US Supreme Court’s judgments concerning their rights and freedoms. But since the USA has not ratified the American Convention and because of this has not recognized the competence of the Inter- American Commission both as has not recognized as binding jurisdiction of the Inter-American Court, the nationals of the USA are deprived of the possibility to appeal for a protection of their possibly violated by the US governmental officials and courts rights to the jurisdiction of the aforementioned International human rights protective instruments.

Hence for attaining the deserved goal of becoming the real leader of all democracies in the world, the USA, to my mind, should accept an idea of providing its nationals with possibilities to apply for a final protection of their rights and freedoms to the Jurisdictions of the Inter-American Commission and the Inter-American Court that has to be effected through a ratification of the American Convention on Human Rights by the US Congress.

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Literature used in the process of writing this article:
1. American Convention on Human Rights: Pact of San Jose, Costa Rica «Adopted at San Jose, Costa Rica, November 22, 1969 at the Inter-American Specialized Confernce on Human Rights.
2. 2. Judgment of the Inter-American Court of Human Rights in the case of: “Atala Riffo and daughters v.Chile”.
3. The European Convention on Human Rights of Rome,4 Novemver1950.

This article is written in English by its Author-Expert of Shevchuk-Master of laws in Comparative Constitutional Law, Member of the International Bar Association in London., President of the Association of Independent Jurists and Journalists “The Democratic Space” in Ukraine, Senior Counsellor of Justice in Ukraine.

vALLERIY i. Shevchuk was born in 1952 in Kirovograd, Ukraine In Ukraine whilr under the Soviets he graduated from the English faculty of the Kirovograd Pedagogical University and tha law faculty of the Odessa State University. In 1994 he graduated from the Central European University, the Constitutional law stream in Budapest, Hungary. In September 1994 he visited the USA due to an invitation of the Fleeson Gooing Coulson and Kitch LLC where he was exploring the US Legal and political systems first-hand thanking to his American sponsors from Wichita mainly-Mrs June E. Huie and Robert K. Robertson whose firms sponsored Shevchuk’s coming to the USA. In April 1995 the University of the State of New-York has awarded Shevchuk with a Diploma of Master of Laws in Comparative Constitutional Law due to his studies at the Central European University and defending his thesis on the topic of: Protection of basic Human Rights at the stage of preventive Detention through Municipal and International law.In 1995 he was invited to study at the International Institute of Human Rights in Strasbourg.After the studies he was selected to have a traineeship with the Human Rights Directorate at the Council of Europe in Strasbourg,France. On coming back to Ukraine, Shevchuk resumed his office of a chief of trial department in the Kirovograd Regional Prosecutor’s Office. In 1998 he retired from this governmental body due to his illness. In 2003 he together with his like- minded persons founded a community non-profit organization- An Association of Independent Jurists and Journalists “The Democratic Space”. At the meeting of the founders, Shevchuk was elected the Association’s president.The Association’s goal is to protect collective and individual human rights from unfair governmental actions.