International Jurisdiction and the strengthening of democracy.
Two examples about the importance of the integration
of international law into domestic law
José Manuel Cisneros MojicaCosta Rica
I. Today the democratic model is the best test of social organization that
has been tried. Among other things, it facilitates the achievement of lasting
peace, a growing and constantly evolving development because it recognizes
itself -democracy- as a socio-political space tending to the sum; a space,
probably the only one, which recognizes and validates "intrusion" of those
considered excluded from the system (Zizek, Slavoj., First as tragedy, then as
farce, page 232, Akal, 2011).
The various forms of organization, which today can be grouped in
more or less two general classifications (democratic and totalitarian) assume
that the destinies of the subjects of the state are going to be determined,
in theory, by more or less rational, more or less controllable and more or
less confrontables thoughts. Although, it is not a "suma cero" or "numerous
clausus" categorization; we can say that a system in which decisions are made
by the governor, without the intervention of real representative bodies, with
lack of objective and verifiable justification and they must be obeyed without
any recourse about their suitability and their effects, could only be called
totalitarian, and it would stand in opposition to what we mean by a government
or democratic state.
Another fundamental distinction helps us to recognize between the two
realities (the totalitarian of democratic), it has to do with the purpose of the
state organization, roughly, we can say that while the totalitarian state sees its
own survival as a goal, state democracy is recognized as a tool to achieve the
satisfaction of its members (as individuals), that is to say, while the subject is
1 To be presented at 14th International Conference of Chief Justices of the World on Article 51
of the Constitution of India, Parallel Session 5: Towards International Law Enforceability.
submitted to the state (the collective is the ultimate goal), on the other case, it is
the collective and its efforts are being subjected to the individual. In democracy,
the human being is the center and objective of all activity.
When it is assumed, as the purpose of government activity, satisfaction
of needs and the development of the human being, in other words, when we
assume the collective democratic model as organizational form, there is a
huge task to harmonize the diverse needs and interests. This endeavor will
necessarily require setting limits, in some cases, to third parties, in other cases
self-imposed, as the only way to achieve social development, limiting only
economically powerful groups against the dispossessed groups, whose voice is
strong against the silenced. It is an essentially dialectical way, some people are
limited to let other people arise, it is auto-limited to rationalize their own limiting
activity.
II. The International Law of Human Rights, a dual role in strengthening the
democratic model. The international judicial bodies have an essential feature
for existing democracies and it could be its most important characteristic: their
decisions deal with subjects to which the countries are involved have not paid
attention (it has almost always been intentionally) or forums discussion are so
narrow that there is no room for all voices.
This fact reveals a dual role for the human rights embodied in the
decisions of international tribunals. Firstly, to resolve the litigation proposed by
the parties, concluding with the drama of a historical event that has occurred in
the life of a citizen (or group of citizens). It is a function of judge, in a contest
arose either from the absolute absence of processes, resources or will, it is of
the existence of these, but with limitations so important that they become
useless or inefficient. Here the state, since it recognized the competence of
international organizations, accepted the supremacy of human beings and the
importance that its conflicts have deep within it accepts to cease his
plenipotentiary and it places itself as a subject under scrutiny. Secondly, and as
a corollary of the first function, it gives ways in which states -
understanding "state" in the broadest possible sense- must begin to travel
without distractions, adding arguments and proposing new horizons.
One might say the argument that it is only a theoretical or academic
observation, however along the Jurisprudence of International Courts various
examples of this can be seen, and this work will expose two examples that
demonstrate the validity of this dual role of international justice Human Rights.
The first case is the relevant judgment of September 26th, 2006, which
resolved the conflict Almonacid Arellano et al v. Chile, decision that showed
the importance of the control of compliance to enforce access to justice. The
other example is the Government of Costa Rica, which has had to submit to the
jurisdiction of the Inter-American Court of Human Rights to review an unfinished
debate in the Costa Rican environment, on the obligation to legislate on the
issue of in vitro fertilization, which is the judgment of November 28th, 2012
(case Artavia Murillo and Others vs Costa Rica).
III. Almonacid Arellano et al v. Chile. i. "The facts as presented by the
Commission in the application refer to the alleged failure to investigate and
punish those responsible for the extrajudicial execution of Mr. Almonacid
Arellano, from the application of Decree Law 2191, amnesty law, adopted in
1978 in Chile, and the alleged lack of adequate compensation to their families”-
judgment of the Court of Human Rights, September 26th, 2006 section I,
paragraph 3, page 2 -.
Following the comment of the sentence, "[...] On October 3rd, 1973
the First Criminal Court of Rancagua initiated an investigation under case No.
40,184 for the death of Mr. Almonacid Arellano, which was dismissed by this
Court on November 7th 1973. The Court of Appeals reversed that dismissal
Rancagua on December 7th, 1973. From that date on, the case was dismissed
again and again by the Criminal Court, while the Court of Appeals continued
reversing such dismissals until September 4th, 1974 it confirmed the temporary
dismissal of the case” - ibid. section VII, item ii, paragraph 82.9, page 29 -.
After these facts came an amnesty law, burying the possibility of
reopening the investigation. ii. The comment sentence stated that, "[...] The
compliance of state agents or officers of a law that violates the Convention
produces international responsibility of the State, and is a basic principle of the
responsibility [...] international the State, embodied in the International Law of
Human rights, in the sense that every State is internationally responsible for
acts or omissions of any of its authorities or agencies in violation of
internationally recognized rights under Article 1.1 of the American Convention
[...] the Court is aware that judges and courts are subject to the rule of law and,
therefore, are required to apply the provisions in the law. But when a State has
ratified an international treaty such as the American Convention, its judges, as
part of the state, are also bound to it, forcing them to ensure that the effects of
the provisions of the Convention are not adversely affected by the
implementation of laws contrary to its object and purpose, and that from the
beginning they do not have legal effect. In other words, the judiciary must
exercise a sort of "control of conventionality" between the domestic legal
provisions that apply in specific cases and the American Convention on Human
Rights. In this task, the Judiciary must take into account not only the
Convention, but also the interpretation of it made by the Court, the ultimate
interpreter of the American Convention” - paragraph VIII. General Obligations
Failure In Articles 1.1 and 2 of the American Convention, paragraphs 123 and
124.
The importance of the sentence in the dual role. Access to
justice as a human right at first sight seemed satisfied in the case of the murder
of Almonacid Arellano - whatever the outcome - but the underlying conflict still
unresolved, a power group had orchestrated a system of legal appearance but
it was designed to ensure the impunity of participants in criminal acts of the
dictatorship. The sentence marks the first role: resolves that such killings have
been committed as part of state policy and constituted a crime against
humanity, which destroys the barrier protecting the perpetrators. Also, when it
analyzes the apparent limitations of judges as public officials under the law,
rescuing their job as interpreters and immediate applicators of international law,
requires them to ensure that the effects of the provisions of the Convention are
not diminished by the application of laws contrary to its object and purpose,
emphasizing that, from the beginning, they do not have legal effect. In other
words, it takes the discussion forum - the application of amnesty laws - and
extends it to warn Chileans Judges, and all judges belonging to the Inter-
American System, that to omit consideration of the obligations undertaken by
the states through conventions and covenants carries responsibility.
IV. Artavia Murillo and Others vs Costa Rica.
i. The background "[...] relates to alleged human rights violations that have occurred as a result of the alleged
general ban to in vitro fertilization practice (hereinafter "IVF") that was in force in
Costa Rica since 2000, after a decision issued by the Constitutional Chamber of
the Supreme Court of Justice (hereinafter "Constitutional Court") of that country.
Among other things, it was argued that this absolute prohibition constituted an
arbitrary interference against the right to private and family life and to raise a
family” - section I, paragraph 2, page 4. ii. For the Court, the result of the State's omissions constituted a clear violation "[...] of Articles 5.1, 7, 11.2 and 17.2 in conjunction with Article 1.1 of
the American Convention." iii. The presence of the victims who request the intervention of international
bodies in enforcing what they believe is their right, in the process, makes
it evident the fulfillment of the first role, the requirement for a final solution
(it has not yet instrumentalized in the effective implementation by the state,
which is not a problem of the system but of the state), in this case not only
compensating, but providing a legislative mandate to prepare a legal regulation
to the issue of in vitro fertilization.
Relevance of the sentence. However, the most important part of this
example is associated with the second role, it broadens the discussion, it
introduces a number of definitions that take the discussion out of strictly ethical,
moral or religious field and it imposes the search of new arguments to those
who detract, and those who sponsor, assisted fertilization practices. It demands,
almost unintentionally a higher level of reasonableness in making legislative
and jurisdictional decisions.
V. More inclusive, more democratic societies. Among the models of state
organization democracy should be undoubtedly privileged. Its inclusive nature
and its continued ability of self-criticism, ensures the individual as any other
system, real possibilities of development.International jurisdiction of human rights, plays a fundamental role,
balancing individual forces with state, it also contributes to revise the route
when, for some reason or another, the preeminence of man over the state has
not arised or it has been weakened.
The search for lasting peace, necessarily leads down the path of
development of the individual, which can only be reached if we are willing to
work together, as a team, always willing to acknowledge the greatness of the
man and promptly rectify the way when required.
