International law, Sixth edition
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International Law MALCOLM N. SHAW
Nicaragua case, Series E, Order of 2 February 1996; the ´
Alvarez et al. v. Colombia case, Series E, Order of 22 July 1997, and the Constitutional Court case, Series E, Order of 14 August 2000. See also Hilaire and Others v. Trinidad and Tobago, Judgment of 21 June 2002. The Court also granted provisional measures, for example, to protect the lives and personal integrity of witnesses in the Mapirip´an Massacre case against Colombia, see 388 i n t e r nat i o na l l aw Under article 64, the Court also possesses an advisory jurisdiction with regard to the interpretation of the Inter-American Convention and other conventions concerning the protection of human rights in the American states at the request of any member state of the OAS. The Court has dealt with a variety of important issues by way of advisory opinions. 248 In Def- inition of Other Treaties Subject to the Interpretation of the Inter-American Court, 249 the Court took the view that the object of the Convention was to integrate the regional and universal systems of human rights protection and that, therefore, any human rights treaty to which American states were parties could be the subject of an advisory opinion. In The Effect of Reservations, 250 the Court stressed that human rights treaties involve the establishment of legal orders within which obligations are created towards all individuals within their jurisdiction and concluded that an instrument of ratification of adherence containing a reservation compatible with the object and purpose of the Convention does not require acceptance by the other states parties and the instrument thus enters into force as of the mo- ment of deposit. 251 In a manner reminiscent of and clearly influenced by the European Court of Human Rights, the Inter-American Court stated that human rights treaties were different in nature from traditional mul- tilateral treaties, since they focused not upon the reciprocal exchange of rights for the mutual benefit of the contracting states, but rather upon the protection of the basic rights of individuals. The obligations were erga omnes, rather than with regard to particular other states. 252 In an important discussion of freedom of expression in the Licensing of Journalists case, 253 the Court advised that the compulsory licensing of journalists was incompatible with article 13, the freedom of expression provision in the Convention, if it denied any person access to the full use of the media as a means of expressing opinions. The Court emphasised that freedom of expression could only be restricted on the basis of ‘compelling governmental interest’ and that the restriction must be ‘closely tailored Annual Report of the Inter-American Court of Human Rights 2005, p. 39, and in the case of the Children and Adolescents Deprived of Liberty in the ‘Complexo do Tatuap´e’ of FEBEM against Brazil, ibid., p. 41. 248 Of the nineteen advisory opinions issued between 1959 and 2005, twelve concerned the interpretation of the Convention, four concerned the interpretation of other treaties and three concerned the compatibility between domestic laws and international instruments: see Annual Report 2005, p. 60. 249 22 ILM, 1983, p. 51; 67 ILR, p. 594. 250 22 ILM, 1983, p.33; 67 ILR, p. 559. 251 Para. 37. See article 74 of the Convention. 252 Ibid., para. 29. See also below, p. 937. 253 7 HRLJ, 1986, p. 74; 75 ILR, p. 31. r e g i o na l p r o t e c t i o n o f h u m a n r i g h t s 389 to the accomplishment of the legitimate governmental objective neces- sitating it’. 254 In the Habeas Corpus case, 255 the Court declared that the writ of habeas corpus was a non-suspendable ‘judicial guarantee’ for the protection of rights from which no derogation was permitted under the Convention under article 27. Reference was made to the ‘insep- arable bond between the principle of legality, democratic institutions and the rule of law’. The Court also emphasised that only democratic govern- ments could avail themselves of the right to declare a state of emergency and then only under closely circumscribed conditions. The Court has also addressed the issue of the relationship between itself and the American Declaration of the Rights and Duties of Man, 1948 in the Interpretation Download 7.77 Mb. Do'stlaringiz bilan baham: |
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