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Claudio Enique NASH Rojas Multilevel Protection of Human Rights in the Inter-American System -- Existence of this Protection at International and National Levels
September 19,2015   By:chinahumanrights.org

Multilevel Protection of Human Rights in the Inter-American System
-- Existence of this Protection at International and National Levels

Claudio Enique NASH Rojas
Chile

WAYS OF CONNECTING TO REALIZE MULTILEVEL PROTECTION

At this point, the obvious question is: On what basis is this process being realized, simple international voluntarism being insufficient, in the technical sense of the term? The question is: What are the avenues through which this protection has become operational so that it is not only by international voluntarism? Is there any basis for it?

We will briefly discuss below three elements leading to development of multilevel international and national systems.

1. PRINCIPLE OF EFFECTIVENESS AND PREVENTION

The principles of effectiveness and prevention are based on the systems of human rights, both domestically and internationally. That is to say, if one wishes to seriously take into consideration that human rights protection needs to have a strong preventive component, the traditional thesis for action is clearly insufficient, as it comes to bear once the violation has already occurred, thus leading to space for discussion of a more integrated thesis. Therefore, in the light of the principles that make international protection uniform, it is possible to justify a form of multilevel protection.

2. PRO HOMINE INTERPRETATION

Article 29 of the American Convention on Human Rights is the major common link; it provides a regulatory basis and consists of a principle, taken from the Vienna Convention, that the objective and purpose of a customary practice should be taken into account in interpreting rules. This principle operates on the basis of an integrated protection from both national and international systems. The basic criterion is best protection, not its origin.

The first application of the pro homine principle is interpretative preference, and this is the main one used by the Court. Its scope is reflected in Advisory Opinion No. 5:

‘The foregoing conclusion clearly follows from the language of Article 29 which sets out the relevant rules for the interpretation of the Convention. Subparagraph (b) of Article 29 indicates that no provision of the Convention may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said States is a party.’

From this interpretative principle it is possible to explain and justify why a hermeneutical exercise integrating international protection with internal analysis, and vice versa, is mandatory and legitimate: namely to justify multilevel protection with a conventional regulatory basis.

3. CONVENTIONALITY CONTROL

The Conventionality Control aspect is the clearest expression of integration between the systems of protection. It has its basis in compliance with obligations to respect the notion of good faith and in particular in obligations to respect and guarantee human rights. The Inter-American Court has assessed that in the vast majority of cases that have come to its knowledge, shortcomings related to judicial protection. Consequently, a more solid element whose basis remains the same regulatory basis of the obligation to guarantee human rights should be developed.

Conventionality control consists of a hermeneutical protection mechanism from which each authority, in the field of its own competence and functions, should interpret rules in a way, which is compatible with the international commitments of the State. The Court in a recent judgment stated:

‘[...] The judges and organs related to the administration of justice at all levels are obliged to monitor ex officio that domestic law is in accordance with the human rights treaties to which the State is a Party, evidently within the framework of their respective competences and the corresponding procedural regulations. In this task, the judges and organs related to the administration of justice, such as the Public Prosecution Service, must take into account not only the American Convention and other inter-American instruments, but also the interpretation of them made by the Inter-American Court.’

This hermeneutic mandate thus requires an integrated view of national and international protection. That is to say we find ourselves face to face with the realization of a complex relationship between systems of protection. Indeed, this element of compliance control could not be satisfactorily explained by the strict criteria of the traditional justification of IHRL as a post facto protection. Clearly, this form of implementation of the obligation to guarantee makes it possible to prevent, and is therefore a clear justification of multilevel protection.

In conclusion, I would offer a response to the initial hypothesis: in effect, multilevel protection does currently exist, where both levels continue to operate within their defined spheres albeit in an integrated manner. And this complex process cannot be explained simply by the traditional thesis of subsidiarity, because consideration of multilevel protection is forcing us to rethink traditional and non-traditional explanations of the relationship between national and international systems given that there are areas where there is complementarity and there are also areas where there is interaction between the systems.

(The author is Professor of International Human Rights Law and Fundamental Rights,University of Chile Law School.)