Human Rights Brief

Volume 18 | Issue 2 Article 8

2011 Updates from the Regional Human Rights Systems Carson Osberg American University Washington College of Law

EmilyRose Johns American University Washington College of Law

Christopher Tansey American University Washington College of Law

Michael Becker American University Washington College of Law

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Recommended Citation Human Rights Brief. "Updates from the Regional Human Rights Systems." Human Rights Brief 18, no. 2 (2011): 53-59.

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UPDATES FROM THE REGIONAL HUMAN RIGHTS SYSTEMS

Inter-American System World Health Organization (WHO) esti- Inter-American Court Invalidates mates of 22,680 maternal deaths in the Amnesty Law Enacted during IACHR Presents Report Americas in 2003 and emphasizes that the Brazil’s Military Dictatorship Demonstrating its Preoccupation risk of maternal death is 21 times higher in In its November 2010 landmark deci- with Women’s Lack of Access to Latin America and the Caribbean than in sion, the Inter-American Court of Human Maternal Health Services during Canada. Moreover, the maternal mortality Rights (Inter-American Court) invalidated Visit to El Salvador rate of indigenous Guatemalan women is Brazil’s 1979 Amnesty Law (Law No. three times higher than that of non-indige- In November 2010, Commissioner 6683/79) protecting those who committed nous Guatemalans. Luz Patricia Mejía, the Rapporteur atrocities during the country’s military on the Rights of Women of the Inter- The Commission is especially con- dictatorship from 1964 to 1985. In Gomes American Commission on Human Rights cerned with structural and cultural bar- Lund v. Brazil, the Inter-American Court (Commission) presented a report address- riers to maternal health, especially for found that by impeding the investigation ing the link between women’s human indigenous and Afro-descendant women. of grave human rights violations, the 1979 rights and access to pre-natal, childbirth, High health care fees, lack of information, Amnesty Law contravenes the American and post-partum health care services. adequate equipment, supplies, and prop- Convention on Human Rights (American Commissioner Mejía presented the the- erly trained personnel, and limited clinic Convention), to which Brazil is a party. matic report to a group of government access prevent women from getting appro- In 1964, a military coup overthrew officials and civil society organizations priate care. Barriers also include a lack of Brazil’s existing constitutional govern- in El Salvador. The report stresses states’ interpretation services, a dearth of cultur- ment. Under the ensuing military dictator- obligations to provide equal access to ally-sensitive medical personnel, and the ship, murders, torture, arbitrary detention, maternal health services and reproductive denial of care due to gender, marital status, forced exile, and disappearances transpired health information in accordance with the or education level. Regional examples of regularly. For example, in the early 1970s, right to humane treatment as protected by such barriers include cases of forced steril- the Brazilian army arrested, tortured, and Article 5 of the American Convention on ization due to ethnic and economic status, killed members of a small guerrilla upris- Human Rights (American Convention). and refusal to provide abortion services to ing in the Araguaia River region (Guerrilha The report also stresses that many maternal a victim of sexual violence. do Araguaia). The fate of many of the and infant mortalities could be prevented The thematic report recommends that guerrilla members still remains unknown. through better information and medical states strengthen their institutional capaci- In 1982, family members of 22 individu- care, and that poor, indigenous, and Afro- ties to guarantee adequate maternal health als disappeared during the Guerrilha do descendant women are disproportionately care and training of providers, establish Araguaia uprising initiated legal proceed- affected. During its October 2010 hearings, referral mechanisms to deal with obstet- ings in an attempt to discover what hap- the Commission emphasized the need to rical emergencies, revise legislation to pened to their relatives. The lower court improve marginalized populations’ access ensure conformity with regional and inter- dismissed the case, but the court of appeals to health services and information. national standards, and eliminate obstacles reversed the dismissal. In 2003, more than The report cites several Inter-American to health services, in particular for mar- 20 years after the families initiated their Court of Human Rights (Inter-American ginalized populations. The Commission suit, the First Federal Court ordered the Court) decisions in which adequate health also commends countries that have already Brazilian government to release informa- care was deemed a key factor in pre- initiated health care reform by expanding tion about the disappeared guerrilla mem- serving the right to humane treatment services to vulnerable groups. bers. Appeals ensued over the course of the under the American Convention. In its next six years. In 2009, the same year the The Commission’s report demonstrates 2006 Ximenes-Lopes v. Brazil decision, Inter-American Commission on Human concern regarding the disproportionate the Court linked the right to health care to Rights (Commission) submitted the case access that poor women, particularly indig- the basic respect for dignity that all people to the Inter-American Court, the Brazilian enous or Afro-descendant women, have deserve. Similarly, the Court linked health Supreme Court affirmed the federal court’s to adequate, affordable, and timely health care with the rights to life and humane ruling and the government began releasing care. It also indicates the commitment of treatment in its 2007 decision on Albán- thousands of pages of records regarding the the Inter-American system to complying Cornejo et al. v. Ecuador. The Commission Guerrilha do Araguaia. with the Millennium Development Goal relies heavily upon a 2007 report by the Pan of improving maternal health. Finally, it In Gomes Lund v. Brazil, the Inter- American Health Organization (PAHO) for further entrenches the right to health as a American Court found that Brazil breached data on maternal health. PAHO’s report fundamental right that goes hand in hand its obligations under the American highlights the region’s challenges of pro- with the right to life, humane treatment, Convention, including the rights to life, viding adequate, universal, and culturally- and respect of human dignity. liberty, and personal security (Articles 1, appropriate health care services. It cites 4, and 7), juridical personality (Article Published by Digital Commons @ American University Washington College53 of Law, 2011 1 Human Rights Brief, Vol. 18, Iss. 2 [2011], Art. 8 3), humane treatment (Article 5), fair trial of Human Rights (Court), as well as to Similarly, Mexico has reported efforts (Article 8), and judicial protection (Article compensate unspecified victims of past to comply with some, but not all, non- 25) by forcibly disappearing the victims human rights violations. The creation of monetary measures ordered in the six and withholding access to truth and infor- the reparations fund follows six Court judgments. The Supreme Court’s 2010 mation from their families. Brazil’s 1979 judgments against Mexico since it formally Annual Report mentions its investigation Amnesty Law, which exonerates those who accepted the Court’s competence in 1998. into compliance with the Radilla Pacheco committed political crimes during the dic- judgment. It also references publication of Civil society organizations have tatorship, has also been interpreted by the the judgment and coordination of a round- responded to the creation of the fund with Brazilian Supreme Court as pardoning table and conference on gender stereotypes mixed reactions. Some are optimistic that government actors responsible for torture, and access to justice per the 2009 Cotton the fund signals progress by the Mexican murder, and forced disappearance. The Field judgment. Although there is evidence government to fulfill its obligations, while Inter-American Court’s judgment requires of Mexico’s attention to its criminal justice others are concerned that it is merely a Brazil to ensure that the Amnesty Law does system through constitutional reform, there means of temporary appeasement through not preclude the investigation and punish- is no indication that Mexico is altering the payment of monetary reparations and that ment of human rights violations committed jurisdiction of the military justice system, the government will not tackle larger insti- during the dictatorship and to establish as required by the latest four judgments. tutional reforms ordered by the Court. The legislation criminalizing forced disappear- Court ordered Mexico to investigate the As compared to reports from prior ances. Although Brazil has already taken kidnapping and murder of three young years, the Mexican Supreme Court’s 2010 steps to recognize the atrocities committed women in a cotton field near Ciudad Annual Report demonstrates progress in during the dictatorship, the Inter-American Juarez in its 2009 judgment in the case of the form of increased attention to compli- Court ordered the State to continue rais- González (Cotton Field) v. Mexico. The ance with the recent Court judgments. ing awareness about human rights and to judgment additionally required Mexico to Given that the Mexican Supreme Court acknowledge its acts of forced disappear- improve its investigatory procedures related fielded 21 requests for information in ance in the Araguaia River region. to disappeared persons, especially women, 2010 from the Ministry of Foreign Affairs The Court’s ruling against Brazil is the and to ensure that they meet international related to eight petitions and other com- third such decision invalidating amnesty standards. In its 2009 and 2010 judgments plaints received by the Inter-American laws in the region; in 2001 and 2006, in Radilla Pacheco v. Mexico, Rosendo Commission on Human Rights, there are respectively, the Court found amnesty Cantú v. Mexico, and Fernandez Ortega likely to be more cases against Mexico laws in Peru and Chile to be incompat- v. Mexico, the Court ordered Mexico to in 2011. The reparations fund, along with ible with the right to truth afforded by the remove offenses committed by military other compensatory measures required by American Convention. In January 2010, members against civilians from the juris- the Court, will be crucial in providing the Commission submitted a case against diction of its military justice system, in Mexican victims of human rights viola- Uruguay to the Inter-American Court pro- keeping with prior Inter-American system tions the justice they have been denied for posing that Uruguay’s similar amnesty law precedent. The Court’s most recent ruling so long. is blocking investigations of forced disap- in Cabrera García and Montiel Flores v. Carson Osberg, a J.D. candidate at the American pearances committed during the country’s Mexico reiterates this order. In all four of University Washington College of Law, covers military dictatorship. With President Dilma those judgments, Mexico is required to the Inter-American System for the Human Rights Rousseff in office, formerly jailed for her complete reform within a “reasonable” Brief. involvement in 1970s guerilla operations, time-period. and with continued efforts to establish a While Mexico’s Suprema Corte de truth commission to investigate crimes Timely and Complete Compliance Justicia de la Nación (Supreme Court) committed during the military dictatorship, by Panama in Tristán Donoso acknowledges its international obligations Brazil appears to be on the way to uncover- Suggests Promising Direction in the area of human rights in its 2010 ing secrets that have remained hidden for Annual Report, Mexico’s actions to com- On September 30, 2010, Panama, a over 30 years. ply with the Court judgments appear to state that only seven years ago challenged be nascent. Despite 2010 deadlines for the competence of the Inter-American Mexican Congress Approves compliance with the 2009 Cotton Field and Court of Human Rights (Inter-American Reparations Fund for Victims Radilla Pacheco judgments, Mexico has Court) to monitor compliance with court- of Human Rights Violations to only reported compliance with the mon- ordered reparations, complied with repa- Comply with Inter-American Court etary reparation measures in Castañeda rations ordered in the 2009 decision in Judgments Gutman v. Mexico, the first of the six cases Tristán Donoso v. Panama within the allot- ted timeframe. Although Panama is subject At the end of 2010, the Mexican adjudicated by the Court. In November to two judgments in which its full compli- Congress approved a budget of 30 million 2010, Mexico reported on its initial actions ance is pending, the State’s immediate pesos (almost 2.5 million USD) to estab- to comply with the Rosendo Cantú and action may indicate a policy shift towards lish a reparations fund for Mexican victims Fernandez Ortega judgments, but those greater compliance with Inter-American of human rights violations. The fund is efforts did not include monetary repara- Court judgments. specifically designated to fulfill judgments tions. handed down by the Inter-American Court Santander Tristán Donoso was a law- yer whose privileged conversation with http://digitalcommons.wcl.american.edu/hrbrief/vol18/iss2/8 54 2 Osberg et al.: Updates from the Regional Human Rights Systems a client was taped by an unknown party petence to monitor compliance follow- In 1990, Landrigan was sentenced to and then released by Panama’s Attorney ing the judgment in Baena-Ricardo. The death by a trial judge, as mandated by an General. When in a press conference, State argued that post-judgment monitor- Arizona statute, instead of a jury. In the Tristán Donoso accused the State of taping ing should be a political function, super- 2002 Ring v. Arizona case, the United the telephone conversation, the Attorney vised by the General Assembly of the States Supreme Court ruled that type of General charged and convicted him for Organization of American States (OAS). sentencing statute unconstitutional, but the criminal slander and libel. After Tristán While the Inter-American Court heard ruling did not mandate new sentencing Donoso exhausted two constitutional chal- Panama’s arguments, it concluded that the hearings for inmates whose appeals were lenges to the domestic law governing slan- Court’s competence to oversee fulfillment final on direct review. Since the Supreme der and libel, and successfully litigated of states’ commitments under Article 33 Court had denied Landrigan’s federal before the Inter-American Commission of the ACHR, the states’ recognition of the habeas petition, he was not permitted a on Human Rights (IACHR), the case was Court’s jurisdiction and function enshrined new sentencing hearing. submitted to the Inter-American Court. in Articles 62(1) and 62(3) of the ACHR, in Landrigan was one of nine inmates The Inter-American Court found Panama conjunction with the General Assembly’s represented in the original petition to had violated the American Convention oversight as mandated in Article 65 of the Commission in 2004. Before the on Human Rights (ACHR) and ordered the ACHR and Article 30 of the Statute Commission, the petitioners alleged that Panama to compensate Tristán Donoso for of the Inter-American Court of Human the United States had violated Landrigan’s non-pecuniary damages, reimburse him Rights, conferred competence to the Inter- rights enshrined in Articles 1 (life, liberty for litigation costs and expenses, announce American Court to continue to monitor and personal security), 2 (equality before the judgment in a local newspaper, and compliance. the law), 18 (fair trial), and 26 (due process expunge his criminal conviction. Within Panama’s compliance with the repara- of law) of the American Declaration of the the 12-month period before the initial tions in Tristán Donoso is a small but excit- Rights and Duties of Man by denying him report on compliance was due, Panama ing step in the direction of consistent and the same opportunity as other prisoners to a complied fully. timely compliance with Inter-American new sentencing hearing. The Commission, Past cases have shown that compli- Court judgments. “[T]his likely signals upon hearing the allegations, awarded pre- ance with Inter-American Court decisions that we can expect . . . something substan- cautionary measures in 2004 that requested has often required extensive follow-up. tially similar from Panama in future cases the United States to refrain from executing Panama’s timely compliance with the involving similar issues,” Baluarte said. Landrigan until the Commission had an Tristán Donoso judgment may indicate a With two decisions still in the supervisory opportunity to investigate his complaint. shift in the State’s attitude toward com- stage, both with issues quite unlike those On October 22, 2010, four days before pliance, although the type of reparations in Tristán Donoso and reparations that Landrigan was scheduled to be executed, awarded in Tristán Donoso may have also are larger in scale, Panama’s full compli- the Commission sent the United States a played a role. In the two other judgments ance with all Inter-American Court deci- merits report on his case recommending a against Panama still in the supervisory sions may still be elusive. However, the review of his trial in accordance with the stage, the Inter-American Court ordered compliance in Tristán Donoso remains an guarantees of the American Declaration. Panama to make more extensive repara- encouraging move toward positive compli- The Commission also ordered the United tions. For instance, in Baena Ricardo et al ance practices from a state that previously States to make its laws, procedures, and v. Panama, Panama was required to make refused to recognize the Inter-American practices around capital crimes compatible reparations in the form of large and ongo- Court’s competence to monitor compli- with the American Declaration’s protection ing payments to 270 victims. In Heliodoro ance. of the rights to a fair trial, due process, Portugal v. Panama, Panama was ordered, and equality before the law. The United among other reparations, to define the U.S. Death Row Inmate Executed States nevertheless executed Landrigan on crimes of forced disappearance and torture in Defiance of Commission’s October 26. in its domestic law, conduct investigations, Recommendations and provide free medical and mental health The United States frequently disre- benefits to the surviving victims. On October 26, 2010, the United gards the Commission’s precautionary States executed Jeffery Timothy Landrigan measures. In 2010 alone, two prisoners Panama’s delays in complying fully in violation of the 2004 precautionary benefiting from precautionary measures with the two previous decisions emphasize measures issued by the Inter-American were executed before the Commission had the significance of their timely compliance Commission on Human Rights for his ben- an opportunity to issue a decision on their in Tristán Donoso. “I think that the speed efit. The precautionary measures requested petitions. In the 2000 case concerning Juan with which Panama complied is remark- the stay of Landrigan’s execution while Raul Garza, the first federal death row able,” said David Baluarte, co-author of the Commission examined the sentencing inmate to be executed by the United States From Judgment to Justice and Practitioner procedure by which he was condemned in 35 years, the United States argued that in Residence with the International Human to death. During the days leading up to it did not consider the precautionary mea- Rights Law Clinic at American University his execution, the Commission urged the sures administered by the Commission to Washington College of Law. Panama’s United States to honor the precaution- be binding. compliance is also historically significant. ary measures and ultimately issued a In 2003, Panama brought the first chal- merits report recommending review of Additionally, in Garza’s case, the lenge to the Inter-American Court’s com- Landrigan’s trial, but to no avail. United States argued that the Commission’s Published by Digital Commons @ American University Washington College55 of Law, 2011 3 Human Rights Brief, Vol. 18, Iss. 2 [2011], Art. 8 conclusion that the United States vio- Charter) to provide free and compulsory A judgment on the merits would not lated Articles 18 and 26 of the American basic education to every Nigerian child. have been possible had the defendants pre- Declaration conflicted with “jurisprudence As one of fifteen member states, Nigeria vailed on any of their preliminary objec- based on the Eighth Amendment of the is bound to comply with the Court’s judg- tions, which challenged the Court’s juris- U.S. Constitution.” In Landrigan’s case, ment, considered by human rights law- diction, the justiciability of the right to the United States did not rely on the U.S. yers to have permanently redefined human education, and SERAP’s standing as an Constitution, instead arguing that the sen- rights-related jurisprudence on the conti- NGO. The Court rejected these objec- tencing procedure in fact complied with its nent. tions in a separate October 2009 ruling obligations under the American Declaration. that is celebrated for affirming the Court’s The November 2010 judgment resulted The United States further claimed that jurisdiction over States Parties’ human from a suit by the Registered Trustees since the Supreme Court’s decision on the rights obligations and NGOs’ standing as of the Socio-Economic Rights and unconstitutionality of judge-only sentenc- representatives of the public interest. Both Accountability Project (SERAP) against ing did not mandate retroactive applica- procedural holdings are positive develop- the Federal Republic of Nigeria and the tion to cases like Landrigan’s related to ments in the sub-regional human rights Universal Basic Education Commission procedural rather than substantive law, it system and, as the Court observed, reflect (UBEC). The complainant alleged that was not prejudicial. Ultimately, the United the international trend to lower procedural Nigeria had violated its obligations under States executed Landrigan despite the fact impediments to adjudication of human the Banjul Charter regarding the right to that the procedure used to sentence him rights issues. education (Article 17), the right to dig- was declared unconstitutional.The discord nity (Article 5), the right of peoples to On the merits, the Court began with between the Commission’s insistence that freely dispose of their wealth and natural the corruption allegations, finding that United States’ laws and procedures must resources (Article 21), and the right of the ICPC report provided only prima facie comply with the American Declaration and peoples to economic and social develop- evidence of isolated incidents and, even if the United States’ assertion that either the ment (Article 20). Specifically, SERAP true, did not prove the degree of negative Declaration is not binding or that United contended that rampant corruption among impact alleged by SERAP. The Court fur- States domestic law is in compliance will high-level officials and theft within the ther clarified that corruption is a criminal likely be a continuing source of dispute. ranks of UBEC had left the education sec- matter reserved to Nigeria’s domestic judi- The United States has appeared more tor woefully underfinanced and unable to cial institutions. Nonetheless it concluded responsive in the last decade by address- provide free and compulsory education that there were insufficient funds in the ing alleged violations of the American to all Nigerian children. The Nigerian education sector for the Nigerian govern- Declaration in its pleadings before the government was complicit by its failure ment to fulfill its obligations to realize Commission. Still, history indicates that to investigate allegations of corruption or children’s right to education. The Court the United States will likely continue to confront the culture of free license. SERAP declared that the government must cover assert the legitimacy of domestic decisions also contended that Nigeria has in effect this shortfall regardless of its origins and and execute death row inmates in defi- denied its citizens the right to freely dis- even while it investigates alleged corrup- ance of precautionary measures and merits pose of their natural wealth and resources, tion or theft. reports that find law and procedure in the which are the bases for realizing the right United States in violation of the American The decision marks a victory for educa- to education and other economic and social Declaration. tion advocates and represents a notewor- rights. thy development for socioeconomic rights EmilyRose Johns, a J.D. candidate at the SERAP’s allegations are based on a jurisprudence in the region. By requir- American University Washington College of Law, report submitted to the Nigerian Presidency ing the government of Nigeria to suf- covers the Inter-American System for the Human in April 2006 that details the mismanage- ficiently fund its education sector, the Rights Brief. ment of funds allocated for basic education Court reallocates the harsh consequences in ten Nigerian states and an October 2007 of corruption and general neglect, forcing African Regional and Sub-Regional Independent Corrupt Practices Commission the government to root out corruption or Human Rights Systems (ICPC) report detailing repeated instances compensate out of its budget. The court’s of theft by UBEC’s highest officials. position is interesting given international ECOWAS Community Court SERAP estimates that, as a direct conse- human rights jurisprudence that generally of Justice Ruling Holds the quence, over five million Nigerian children requires states to work only within or to Government of Nigeria Accountable lack access to primary education. In filing the maximum of available resources to for Fulfilling the Right to suit, SERAP sought, inter alia, a declara- fulfill. In this case, however, the ECOWAS Education despite Corruption tion that every Nigerian child is entitled to Community Court has effectively imposed free and compulsory education pursuant a core minimum requirement despite evi- The Court of Justice of the Economic to Nigeria’s own domestic legislation and dence that Nigeria’s education sector is in Community of West African States an order compelling the government to financial distress. Its decision makes clear (ECOWAS) has ordered the government replenish the funds available to the educa- that corruption and chronic mismanage- of Nigeria to replenish a shortage of funds tion sector, prosecute those responsible for ment of funds do not excuse Nigeria from in its education sector so that it may fulfill theft or corruption, and monitor the recov- reaching a baseline standard in accordance its obligation under the African Charter ery of stolen funds. with its obligations. on Human and Peoples’ Rights (Banjul http://digitalcommons.wcl.american.edu/hrbrief/vol18/iss2/8 56 4 Osberg et al.: Updates from the Regional Human Rights Systems With the question of enforcement loom- munity identity, and womanhood. Other take education and public-awareness cam- ing, SERAP issued an open letter urging states seemingly pass legislation to please paigns in conjunction with legislation out- the eighteen current presidential candidates the global community and comply with lawing the practice. The UN interagency to make full and effective implementation international human rights instruments, statement suggests that FGM rates decline of the judgment central to their campaigns. but have no genuine intention to implement most when states undertake prevention Regardless of whether such political will provisions on FGM. Compliance is thus as well as punishment. Second, Africa’s can be garnered within Nigeria, the Court’s dependent not only on passing laws, but human rights institutions must continue to judgment advances regional jurisprudence on states’ ability — and political will — to work, despite their limitations, to ensure on states’ obligations to devote sufficient enforce laws and devise ways of furthering that States Parties comply with the human resources to realizing social and economic even those regional human rights objec- rights obligations they have undertaken rights and, in the present case, champions tives that threaten deeply entrenched social through voluntary ratification of regional the position that children should not bear conventions held by local communities. instruments. Unless these institutions find the costs of corruption. more effective ways to secure State Party When other States Parties lack suf- compliance, it is unlikely that regional ficient political will to pass legislation, human rights norms will reach the commu- The Prohibition of Female Genital responsibility falls on Africa’s human nities where harmful traditional practices Mutilation in Africa: A Test for rights institutions to use their authority such as remain most prevalent. Africa’s Regional Human Rights to enforce Article 5 obligations. In 1999, System the African Commission on Human and Christopher Tansey, a J.D. candidate at the In 2008, the World Health Organization Peoples’ Rights appointed its first Special American University Washington College of Law, with several partner UN agencies published Rapporteur on the Rights of Women in covers the African Regional and Sub-Regional an interagency statement that detailed Africa, tasked, inter alia, with oversee- Systems for the Human Rights Brief. efforts to reduce the practice of female ing State Party efforts to implement the Banjul Charter and the Maputo Protocol. genital mutilation (FGM). The practice European Court of Human Rights continues on a staggering scale, most nota- However, while the Special Rapporteur’s bly in Africa, where the statement esti- office is authorized to expose noncompli- European Court Institutes Priority mated over 91 million women and girls had ance and propose recommendations to the Policy for Hearing Claims been subjected to FGM, often with mental Commission, it has no means of sanction- and physical health-related consequences. ing noncompliant States Parties. Worse, the In accordance with an amendment to A further 3 million girls on the continent Commission’s recommendations following its Rules of Court, the European Court face the risk of FGM every year. consideration of individual or NGO com- of Human Rights (Court) will now hear plaints are not generally considered legally cases based on the urgency of the viola- Opposition to FGM in Africa can binding. tion, as opposed to the chronological order be inferred from the Banjul Charter, its of receipt. The change will ensure urgent The African Court on Human and Protocol on the Rights of Women (Maputo claims are not lost in the Court’s massive Peoples’ Rights is also charged under Protocol), as well as the Charter on the caseload, but such expediency may come at Article 27 of the Maputo Protocol with “all Rights and Welfare of the Child (Children’s the expense of lesser violations, which may matters of interpretation arising from [the Charter). The most explicit language is never be heard. found in Article 5 of the Maputo Protocol, Protocol’s] application or implementation.” which calls upon its 28 States Parties However, while a complaint concerning As part of its new Priority Policy, the to prohibit “all forms of FGM” through alleged violations of Article 5 could theo- Court will place each pending claim into a legislative measures and supportive sanc- retically reach the Court, it would have to category – numbered I through VII – based tions. Although the meaning of “sanctions” be based not on an instance of FGM within on the level of importance. Claims that may be open to interpretation, Article 5 a given State Party, but rather on the failure detail particular risk to life or health of the makes fairly clear what practical steps are of that state’s government to pass legisla- applicants will be given highest priority. required of States Parties. But, it raises tion prohibiting the practice. It is not clear Claims that deal with matters of admis- critical questions about both the capacity who would have standing to bring such a sibility receive the lowest priority. While of States Parties to pass and enforce human case, based on direct harm from a State the Priority Policy actually went into effect rights legislation that may run counter to Party’s failure to pass legislation. Nor is it in July 2009, the Court only recently made customary practice and the effectiveness of clear under the Court’s Protocol what steps public its grading criteria. The Court some- Africa’s human rights institutions in con- might be taken to enforce compliance with times gave priority to particularly urgent fronting and sanctioning noncompliance. a Court decision even though it would be cases prior to 2009, but the new policy legally binding. establishes a clear order of adjudication at Of the 28 States Parties to the Maputo a time when the Court’s pending caseload As with many other pressing human Protocol, twelve either had criminalized exceeds 130,000 applications, a number rights issues in Africa, eliminating the FGM prior to ratification or did so after- which rose by 17 percent in 2010. ward. Yet, in several of these states, legal practice of FGM requires efforts on two prohibition has had a negligible effect fronts. First, compliant states must com- The categories are as follows: municate regional human rights standards on actual practice, as implementation has I – Urgent applications that show to communities with opposing core beliefs. stalled in local communities where FGM a particular risk to life or health Article 5 requires that States Parties under- is still considered part of tradition, com- of the applicant; other circum- Published by Digital Commons @ American University Washington College57 of Law, 2011 5 Human Rights Brief, Vol. 18, Iss. 2 [2011], Art. 8 stances linked to the personal or heard only when cases in priority levels Critics of Ireland’s strict abortion laws family situation of the applicant, I-IV have been adjudicated, allowing the instantly lauded the decision as a crack particularly where the well-being Court to focus on only the most serious in the established policies. Anti-abortion of a child is at issue violations. proponents countered that the Court’s judg- ment does nothing more than reinforce II – Applications capable of hav- However, the subjective nature of label- laws already in Ireland’s constitution. The ing an impact on the effectiveness ing priorities raises concerns regarding true effect on Ireland’s abortion laws – of the European Convention on the introduction of bias into the process, considered some of the strictest among Human Rights and could possibly encourage violators States Parties to the European Convention to commit low-priority offenses with no III – Applications that raise com- on Human Rights – likely lies somewhere fear of punishment. A number of serious plaints under Article 2 (right to in the middle. questions must be asked and continually life), 3 (protection from torture), monitored as the Court transitions to its Currently, abortion in Ireland is only 4 (protection from slavery) and 5 Priority Policy. Should a petitioner who legal when a woman’s life is at stake due to § 1 (right to liberty and security) was deprived of a fair and public hearing pregnancy. As such, thousands of women IV – Potentially well-founded be any less aggrieved because his claim travel from Ireland to England and Wales applications based on other falls fourth on the spectrum? What about each year seeking legal abortions. The Articles those who have been denied their rights applicants to the complaint – two Irish to free speech and religion, who now may nationals and one Lithuanian – all traveled V – Applications raising issues wait years or decades behind those whose to the United Kingdom in 2005 for abor- already dealt with claims are deemed “more urgent?” The tions. The first applicant, a poor, unmar- VI – Applications identified as Court reserved an important right by grant- ried, and unemployed woman living in giving rise to a problem of admis- ing the Chamber or its President the oppor- poverty, chose to have an abortion to avoid sibility tunity to decide that an individual case “jeopardizing her chances of reuniting her should be treated outside the parameters of family.” The second applicant chose to VII – Applications which are the Policy, but it is uncertain how often that have an abortion because she did not want manifestly inadmissible right will be invoked. to become a single parent. The third appli- According to a press release issued cant, from Lithuania, was in remission How the Court applies its new Priority by the Court, the Priority Policy’s “aim is from cancer and chose an abortion out of Policy will determine the Court’s efficacy clearly to ensure the most serious cases fear the cancer would return. As reported in for years to come. As such, a Working Party and the cases which disclose the existence the Court’s press release, “[t]he third appli- will monitor the policy’s implementation of widespread problems capable of gen- cant submitted that, although she believed and address any inequalities that arise. erating large numbers of additional cases her pregnancy put her life at risk, there was Should such issues emerge, the policy are dealt with more rapidly.” However, no law or procedure through which she may need modification. In the meantime, while the policy should ensure the most could have that, and, as a result, her right to it appears to be a much-needed remedy to important cases are heard without delay, it an abortion in Ireland, established.” an increasingly outmatched Court system could have a fatal effect on claims of lower and its implementation is certain to be Essentially, as New York Times reporter priority. The Court will admittedly hear watched closely by other regional human and Yale Law School professor Linda fewer cases because its most urgent claims rights systems, such as the Inter-American Greenhouse pointed out, the Court “made often are its most time consuming, requir- Commission on Human Rights, as a pos- clear that it was not recognizing a right ing complex analysis of the nuances within sible solution to their own crushing back- to abortion. On behalf of Plaintiff C, who the Convention’s articles to be applied to log of cases. could not find an Irish doctor willing to the facts at hand. This creates the potential help her even assess her risks, it was simply that applications without priority may, as telling Ireland that if the country chose to human rights professor Dr. Antoine Buyse Court Rules on Ireland Abortion offer a life-saving exception to its abortion wrote on his ECHR Blog, “remain on the Rights Cases ban, it had to give women ‘an accessible docket virtually eternally.” A long-awaited decision by the and effective procedure’ to demonstrate The policy is yet another stab at effi- European Court of Human Rights regard- that they qualified.” ciency for the Court, which has been under ing abortion rights in Ireland inspired What the decision means for Ireland’s pressure to reduce its caseload by narrow- claims of victory from both sides of the future depends on the implementation of ing its scope. While human rights advocate debate, but plenty of questions still remain the ruling. As a State Party to the European Christos Pourgourides stressed the need regarding implementation of the decision. Convention on Human Rights, Ireland must for subsidiarity as a reduction tactic, the On Dec. 16, 2010, the Grand Chamber somehow ensure similar violations do not Priority Policy may be a more feasible ruled that Ireland breached the right to pri- occur in the future. One way the Republic solution. When it becomes clear that the vate and family life (Article 8) of a woman may do this is by softening abortion leg- Court refuses to address certain topics whose access to legal abortion in Ireland islation and joining many of its European due to their level of priority, the submis- was infringed upon by the government. The peers in a pro-choice stance. A more likely sion of those claims will eventually cease. Court found no violation, however, with solution for this conservative country is to Repetitive cases and applications that give respect to the other two applicants in the rise to the problem of admissibility will be case – A, B, and C v. Ireland. http://digitalcommons.wcl.american.edu/hrbrief/vol18/iss2/8 58 6 Osberg et al.: Updates from the Regional Human Rights Systems better legislate the anti-abortion exception, Constitution clearly says that the right to abortion decision, Roe v. Wade, could be or, perhaps, to eliminate it entirely. life of the unborn child is equal to that of challenged and potentially weakened. his or her mother,” Cardinal Brady said. Abortion rights in Ireland are still new Even the three European countries “These are the fundamental human rights enough that some envision a possible swift whose abortion laws have been described as at stake.” return to abolition. The anti-abortion stance equal to, or more restrictive than, Ireland’s is rooted in an 1861 law that made abortion The world will watch with interest – Andorra, Malta, and San Marino – may a criminal act. It was only in 1992 that the how Ireland chooses to apply the Court’s feel emboldened that the Court did not Irish Supreme Court allowed abortion and, ruling. The United States, for example, establish a minimum degree of protection in that case, only if the situation presented may encounter similar debates when the for women seeking abortion. While not a “substantial risk to a mother’s life.” conservative-led House of Representatives beholden to Ireland’s implementation of convenes for the next Congress and newly the Court’s ruling, anti-abortionists could While several government officials elected conservative state legislators take look to the Republic for cues. have said the Court’s ruling mandates fur- office. In Nebraska, a conservative legis- ther legislation, the Archbishop of Armagh, Michael Becker, a J.D. candidate at the American lature passed a ban on abortion after 20 Sean Brady, said there was no obligation to University Washington College of Law, covers weeks, even though most states’ bans on change Irish law, and further reiterated the European Court of Human Rights for the abortions begin at 22 or 24 weeks. If more the Catholic Church’s stance that neither Human Rights Brief. HRB states are successful in passing similar the unborn child nor the mother may be legislation, the country’s landmark 1973 killed under any circumstance. “The Irish

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