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THE JURISDICTION OF THE INTER-AMERICAN COURT OF HUMANRIGHTS IN INTERPRETING OTHER TREATIES THROUGH THE AMERICANCONVENTION: IS THE COURT OVERSTEPPING ITS BOUNDARIES?

Eline Kindt

Introduction

The Inter-American Court of Human Rights has interpreted the

American Convention on Human Rights (hereinafter “ACHR”) in the

light of other international treaties, according to article 29(b)

of the ACHR in its previous case-law. The question can be raised

whether the Court, in doing so, is giving a broader interpretation

to these international treaties as well.

If so, this could be considered a problem since the Court does not

have that competence. Article 62 makes clear that the Court only

has the competence ratione materiae to interpret and apply the ACHR.1

Moreover, this could result in a skewed enforcement and monitoring

of these other international treaties as such. Although human

rights are in se developed to protect persons from the powers of the

state, human rights treaties not only lay negative obligations on

states. To the contrary, human rights provisions mostly impose

1 aside from other human rights treaties of the OAS in which the competence ofthe Court was expressly recognized ; Art. 62 American Convention on Human Rights1969 (OAS); Art. 19(6) Additional Protocol to the American Convention on HumanRights in the Area of Economic, Social and Cultural Rights (1988) (OAS); Art.XIII Inter-American Convention on Forced Disappearance of Persons (1994) (OAS);Art. 15 (iii) Inter-American Convention against All Forms of Discrimination andIntolerance (2013) (OAS); Art. 15 (iii) Inter-American Convention againstRacism, Racial Discrimination and Related Forms of Intolerance (2013) (OAS).

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positive obligations on them. Therefore, it is paramount to the

protection of human rights that states thoroughly know their

obligations, in order to fully implement them. If the Inter-

American Court is in fact widening the scope of its competence and

as a result broadening the interpretation of other international

treaties, states are not able to know their obligations and are

ultimately hindered in their duties to protect, respect and ensure

human rights.

The first part of this paper will first sketch a broader overview

concerning the principles of interpretation followed by the Court.

Subsequently, the second part of this paper will go into the case-

law of the Court, in which it has turned to other international

instruments to interpret the ACHR. There are various fields in

which the Court has applied article 29(b) of the ACHR to pull in

other international instruments.2 However, this paper does not

intend to be exhaustive in its description of the Court’s use of

article 29(b) of the ACHR. This second part focusses on the

following four branches of International Human Rights Law

(hereinafter “IHRL”). First, the innovative jurisprudence of the

Court concerning indigenous peoples’ land rights will be

discussed, since the standards set by the Court are integrally

developed through ILO Convention 169. Second, this paper will have

a look at how the Court approaches the question concerning the

dichotomy or overlap of IHRL and International Humanitarian Law

(hereinafter “IHL”) in incorporating rules of IHL in cases

concerning situations of armed conflict. Third, the case of Yean and

Bosico v. Dominican Republic will be discussed within the ambit of the2 For instance also concerning the rights of migrants, see the recent judgmentof the Pacheco Tineo Family v. Bolivia (2013) Ser. C. no. 272.

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right to nationality, since here the Court uttered a very

interesting and forward positive duty for states concerning the

reduction of statelessness. Lastly, this paper will look into the

Court’s approach concerning children’s rights since the ACHR only

contains one, very generic provision concerning the rights of the

child, leaving ample room for the Court to apply article 29(b) of

the ACHR.

The third part of this paper will then compare the Court’s

interpretation of these other international instruments with their

interpretation and application outside of the reach of the Court.

In this way, the paper will assess whether the Court is broadening

the content and scope of these international treaties further than

it was originally intended. In turn, this assessment will answer

the question whether the Court is overstepping its boundaries in

its application of article 29(b) of the ACHR.

Principles of Interpretation

Article 29 of the ACHR establishes the rules of interpretation

that must be adhered to in interpreting and applying it.3 Article

29 (b) has been instrumental for the Court in interpreting the

ACHR in cases where the Convention is silent or unclear concerning

specific duties for the states.

Article 29 (b) provides that “[no provision of [the ACHR] shall 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”.4

3 Art. 29 American Convention on Human Rights 1969 (OAS). 4 Emphasis added.

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Based on this article, the Court has said that human rights

treaties are living instruments and that therefore their

interpretation must evolve over time so that they reflect current

conditions.5 This doctrine is known as the evolutionary

interpretation of treaties. The Court has explained its approach

by referring to the Vienna Convention on the Law of Treaties.6 The

latter convention makes it possible to not only take into account

the agreements and instruments that are formally related to the

convention to interpret7, but also the system of which it is part8.

Moreover, the Court has considered that it could “address the

interpretation of a treaty provided it is directly related to the

protection of human rights in a Member State of the Inter-American

system,”9 even if that instrument does not belong to the same

regional system of protection.10 In this regard, when interpreting

the American Convention, the alternative that is most favorable to

protection of the rights enshrined in said treaty must always be

chosen, based on the principle of the rule most favorable to the

human being, the pro homine principle.11 This has lead the Court to

take an integrative approach of norms and jurisprudence, resulting

in the recognition of the existence of “blocks of rights”.12 The

interaction that is created between the Inter-American Human

5 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77, para193; Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 161.6 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77, para192; Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 161.7 Art. 31 (2) Vienna Convention on the Law of Treaties 1969 (UN). 8 Art. 31 (3) Vienna Convention on the Law of Treaties 1969 (UN). 9“Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention onHuman Rights), Advisory Opinion, OC-1/82 (1982), paras; 14, 32, 38; Juridical Conditionand Human Rights of the Child, Advisory Opinion, OC-17/2002 (2002), para. 22.

10 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 161. 11 Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Liakat Ali Alibux v.Suriname (2014) Series C no. 276, para 77. 12 Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Liakat Ali Alibux v.Suriname (2014) Series C no. 276, para 75.

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Rights system and other Human Rights Systems, mostly the Universal

System, has led to the concept of the corpus juris of IHRL. This

corpus juris contains a variety of international instruments differing

in content and legal effects, such as treaties, conventions,

resolutions and declarations.13 This evolutionary interpretation

has had a liberating effect for the Court concerning its ability

to regulate the relationship between the state and the persons

within its jurisdiction.14

In this regard, Judge Eduardo Ferrer Mac-Gregor Poisot has

eloquently stated that “[i]f the Inter-American Court were to

ignore the plethora of existing approaches with respect to a

single topic, emanating normatively from different international

treaties and functionally from different international mechanisms,

it would not only be impossible to speak of a jurisprudential

dialogue – which constitutes an integrative element of rights

itself, - it would also make it extremely complicated for the

States to comply with their international obligations, if such

duties were downright contradictory with norms of a distinct

order, with whose application they coincide, or completely devoid

of connection to them. The foregoing is based on the assumption

that many States with whom this Court relates actively participate

both in the Inter-American System, as well as the Universal System

of Human Rights (…)”.15

13 Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Liakat Ali Alibux v.Suriname (2014) Series C no. 276, para 81. 14 Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Liakat Ali Alibux v.Suriname (2014) Series C no. 276, para 81. 15 Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Liakat Ali Alibux v.Suriname (2014) Series C no. 276, para 80.

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The Interpretation of Other Treaties through the Application of Article 29 (b) in the

Court’s Jurisprudence

Indigenous Peoples’ Right to Ancestral Lands

Since 2001, the Inter-American Court has developed a comprehensive

body of case-law concerning indigenous peoples’ right to land,

within the ambit of the right to property.16 In the development of

these standards, the Court has, via article 29(b), relied numerous

times on instruments other than the American Convention to provide

guidance concerning the content and scope of indigenous property

rights. In this context, the Court is predominantly looking at the

standards set in ILO Convention 169.

In its first case concerning indigenous land rights, the case of

the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Inter-American

Court found that the right to property included the right to

communal property.17 The Court found this broadened concept of

communal property within the Convention inter alia through an

“evolutionary interpretation of international instruments for the

protection of human rights”, however failing to mention which

international instruments it referred to.18 However, in its second

case concerning the topic, the case of the Yakye Axa Indigenous

Community v. Paraguay, the Court referenced back to the Awas Tingni

case, stating that the criteria of ILO Convention 169 – however

not mentioned in the Awas Tingni case - had inspired it in that case

to find that “the close relationship of indigenous peoples with

[their] land must be acknowledged and must be understood as the

16 Art. 21 American Convention on Human Rights 1969 (OAS) (hereinafter “ACHR”). 17 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) Ser. C no. 79, para148. 18 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) Ser. C no. 79, para148.

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fundamental basis for their culture (…)”.19 Nicaragua had however

not ratified ILO Convention 169 at that time.20

In contrast to the Awas Tingni case, the Court did disclose where it

was getting its inspiration in interpreting the right to property

in favor of indigenous peoples in the Yakye Axa case. Paraguay had

ratified ILO Convention 16921 and as a result the Court

incorporated it in its assessment of the content of the right to

property in the ACHR concerning indigenous peoples, in line with

article 29(b).22 The Court strengthened the link it had established

between land and culture through article 13 of ILO Convention

169.23 Seeing this article, the Court concluded that indigenous

peoples’ close cultural ties with their lands and natural

resources must be protected under article 21 of the ACHR.24 In

addition, the Court sought guidance in article 16(4) of the ILO

Convention in trying to find a balance between the interests of

the state and those of the involved communities in awarding

compensation by restituting lands lost.25 The Court ultimately

found that “[s]election and delivery of alternative lands, payment

of fair compensation, or both, are not subject to purely

discretionary criteria of the State, but rather, pursuant to a

comprehensive interpretation of ILO Convention 169 and of the

American Convention, there must be a consensus with the peoples

involved, in accordance with their own mechanism of consultation,

19 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 131; Case of theMayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) Ser. C no. 79, para 149. 20 ILO Normlex, Ratifications for Nicaragua, < http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102780> accessed 14 April 2014. 21 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 130. 22 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 127-129.23 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 135-136.24 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 137. 25 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 149-150.

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values, customs and customary law”.26 Closely thereafter, the Court

made a similar judgment in the case of the Sawhoyamaxa Indigenous

Community v. Paraguay, since the case originated from approximately

the same fact pattern.27

With the case of the Saramaka People v. Suriname, the Inter-American

Court delivered a landmark judgment concerning indigenous peoples’

rights to their ancestral lands and states’ positive obligations

in restricting those rights.28 In this case, the Court built on its

previous standards as set in the Yakye Axa and Sawhoyamaxa cases. It is

however important to note that Suriname had not ratified ILO

Convention 169, in contrast to Paraguay.29 But this would not

prevent the Court from incorporating the same standards and even

building on them. The Court acknowledged that Suriname had not

ratified the ILO Convention.30 Nevertheless, the Court turned to

the right to self-determination, as provided in common article 1

of the International Covenant on Civil and Political Rights

(hereinafter “ICCPR”) and the International Covenant on Economic,

Social and Cultural Rights (hereinafter “ICESCR”). The Committee

on Economic, Social and Cultural Rights (hereinafter “CESCR”), the

monitoring body for the ICESCR, had previously established that

indigenous peoples had the right to self-determination31 so that

they may “freely pursue their economic, social and cultural

26 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 151. 27 Efrén C. Olivaris Alanís, ‘Indigenous Peoples’ Rights and the ExtractiveIndustry: Jurisprudence from the Inter-American System of Human Rights’ [2013]Goettingen Journal of International Law 187, 202; Sawhoyamaxa Indigenous Community v.Paraguay (2006) Ser. C. no. 146.28 Saramaka People v. Suriname (2007) Ser. C. no. 172. 29 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 93. 30 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 92-93.31 CESCR, Consideration of Reports submitted by States Parties under Articles 16 and 17 of the Covenant,Concluding Observations on Russian Federation (Thirty-first session) (2003) U.N. Doc.E/C.12/1/Add.94, para. 11; Saramaka People v. Suriname (2007) Ser. C. no. 172, para93.

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development”, and may “freely dispose of their natural wealth and

resources” so as not to be “deprived of [their] own means of

subsistence”.32 The Court further turned to the Human Rights

Committee (hereinafter “HRC”), the monitoring body for the ICCPR.

The HRC had previously analyzed article 27 of the ICCPR and had

established that “minorities shall not be denied the right, in

community with the other members of their group, to enjoy their

own culture[, which] may consist in a way of life which is closely

associated with territory and use of its resources. This may

particularly be true of members of indigenous communities (…)”.33

In the light of common article 1 and article 27 of the ICCPR, the

Court concluded that the Saramaka had the right to enjoy their

property in accordance with their communal traditions.34

Additionally, the Court found that indigenous and tribal people

also have the right to the natural resources in their territory

that relate to their culture within the ambit of article 21 of the

American Convention.35 Although the Court had uttered this very

quietly in the Yakye Axa and Sawhoyamaxa cases, it was now stressing

this right while referencing to these two cases.36 However, this

right to the natural resources within indigenous territory

originated from the interpretation and application of article 13

of the ILO Convention 169.37

32 Common Art. 1 ICCPR and ICESCR; Saramaka People v. Suriname (2007) Ser. C. no. 172,para 93. 33 HRC, General Comment No. 23: The rights of minorities (Art. 27) (Fiftieth session) (1994) U.N.Doc.CCPR/C/21Rev.1/Add.5, para 1 and 3.2; Saramaka People v. Suriname (2007) Ser. C. no.172, para 94. 34 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 95. 35 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 120. 36 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 121. 37 Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125, para. 137;Sawhoyamaxa Indigenous Community v. Paraguay (2006) Ser. C. no. 146, para. 118.

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The Court continued by stressing that due to the inextricable link

of indigenous and tribal peoples to their lands and natural

resources, the protection of their property rights is necessary to

guarantee their cultural and physical survival.38 This however does

not mean that states are automatically prevented from granting

concessions for the exploration and extraction of natural

resources in indigenous or tribal territory.39 This does mean that

in restricting their property rights, the state must ensure that

the restriction does not amount to a denial of their traditions

and customs in a way that endangers the very survival of the group

and its members.40 The Court arrived at this last safeguard by

referring to the case of Länsman et al v. Finland of the HRC.41

Subsequently, the Court developed a three-headed test to be

fulfilled by states in restricting tribal and indigenous

communities’ land rights in order to ensure that these

restrictions do not lead to the denial of their survival as such.

First, the state must consult with the members of the community in

conformity with their customs and traditions, regarding any

development or investment plan. Second, the state must guarantee

that the involved community shares in the benefits of the

development or investment plan. Third, the state cannot grant any

concession before a prior environmental and social impact

assessment has been conducted by independent and technically

capable entities under the state’s supervision.42 The Court

clarified that these safeguards, especially the first two, are in

38 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 122. 39 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 126. 40 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 128. 41 HRC, Länsman et al. v. Finland (Fifty-second session) (1994) U.N. Doc.CCPR/C/52/D/511/1994, para 9.4 ; Saramaka People v. Suriname (2007) Ser. C. no. 172,para 128. 42 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 129.

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conformity with the observations of the HRC43, several

international instruments and state practice. Concerning the

conformity of this three-headed test with “several international

instruments”, the Court referred to article 15 (2) of ILO

Convention 169, the HRC’s General Comment no. 23 concerning the

rights of minorities and the UN Committee on the Elimination of

Racial Discrimination’s General Comment no. 23 concerning the

rights of indigenous peoples.44 Next, the Court established a duty

for the state to obtain the free, prior and informed consent

concerning large-scale development plans that would have a major

impact in indigenous or tribal territory.45 Thereto, it first looks

at the UN Declaration on the Rights of Indigenous Peoples

(hereinafter ‘UNDRIPS”) since it was approved by the UN General

Assembly with the support of Suriname. 46 This instrument contains

in its article 32 both the duty to consult in order to obtain

consent as the duty to compensate.47 Lastly, the Court observed

that the duty to share the benefits of development or investment

plans was not only inherent to article 21(2) of the American

Convention, but could also be found in other international

instruments such as ILO Convention 169 and the UNDRIPS.48

With its most recent judgment concerning the topic, the case of

the Kichwa Indigenous People of Sarayaku v. Ecuador, the Court specified the

state’s obligations within the previously established duty to

consult. The Court in this regard stated that the obligation to

43 HRC, Apirana Mahuika et al. v. New Zealand (Seventieth session) (2000) U.N. Doc.CCPR/C/70/D/547/1993, para 9.5; Saramaka People v. Suriname (2007) Ser. C. no. 172,para 130. 44 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 130, note 128. 45 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 134. 46 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 131. 47 Art. 32 United Nations Declaration on the Rights of Indigenous Peoples 2007(UN); Saramaka People v. Suriname (2007) Ser. C. no. 172, para 131. 48 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 138.

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consult is widely recognized, seeing corresponding state practice

in states that have ratified ILO Convention 169, as well as in

states that haven’t.49 In contrast to Suriname and Nicaragua,

Ecuador had ratified ILO Convention 169.50 The Court stated that

Ecuador had assumed an international commitment to guarantee the

right to consultation upon ratifying ILO Convention 169. Before

its ratification, the State only had the obligations to guarantee

the right to the effective enjoyment of property in accordance

with communal tradition, taking into account the particular

relationship to land of indigenous and tribal peoples.51 This

implies that the obligation to consult results from ILO Convention

169, in clear contrast to the Court’s finding in the Saramaka case.

Armed Conflicts and the Application of Rules of International

Humanitarian Law

In the case of the Mapiripan Massacre v. Colombia, the Court looked at

common article 3 to the Geneva Conventions and Additional Protocol

II (hereinafter “AP II”) thereto in order to establish the

international responsibility of the State concerning the

violations occurred during the non-international armed conflict in

Colombia.52 However, with respect to the rights of children in

armed conflict, the Court did look at AP II to specify the content

and scope of Article 19 of the American Convention.53 The Court

considered that AP II encompassed part of a comprehensive corpus juris

for the protection of children which the states must abide by.54 It

included the UN Convention on the Rights of the Child (hereinafter

49 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 164 – 165. 50 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 170. 51 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245, para. 172. 52 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 114 and 123. 53 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 153. 54 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 153.

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“UNCRC”) in this category55, upon which will be returned later. The

Court however merely employed AP II to establish principles

without applying them to the case.

The Court further considered AP II concerning the alleged

violation of the right to freedom of movement to the detriment of

thousands of internally displaced persons in Colombia. 56 It also

looked at the HRC’s General Comment no. 27 and the Guiding

Principles on Internal Displacement issued by the Representative

of the Secretary General of the United Nations.57 In this regard,

the Court specifically mentioned article 17 of AP II that

prohibits ordering the displacement of civilian population for

reasons related to the conflict, unless this is required by the

safety of civilians or for imperative military reasons.58 The Court

further stated that “[u]nder the terms of the American Convention,

the differentiated situation of displaced persons places States

under the obligation to give them preferential treatment and to

take positive steps to revert the effects of [their] condition of

weakness, vulnerability, and defenselessness, including those vis-

à-vis actions and practices of private third parties”.59 The Court

further concluded that “[t]hrough an evolutive interpretation of

Article 22 of the Convention, taking into account the applicable

provisions regarding interpretation and in accordance with Article

29.b of the Convention —which forbids a restrictive interpretation

of the rights-, this Court deems that Article 22(1) of the

Convention protects the right to not be forcefully displaced

within a State Party to the Convention”.60

55 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 153. 56 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 172. 57 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 168, 171. 58 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 172.59 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 179. 60 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 188.

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The Court considered AP II again in interpreting the right to

property within the context of a non-international armed conflict

in the case of the Ituango Massacres v. Colombia.61 This time however, it

brought in AP II not only to establish the state’s international

responsibility but also to interpret its provisions in accordance

with the evolution in the Inter-American system and the

corresponding development in IHL.62 To this end, it incorporated

articles 13 and 14 of AP II and applied these standards very

strictly to the facts of the case.63

The Right to Nationality and Statelessness

In the case of Yean and Bosico v. The Dominican Republic, the Court

considered the right to a nationality and the reduction of

statelessness. The Court stressed that the right to nationality is

a fundamental right that cannot be derogated from.64 Although

granting nationality is subject to the discretion of the state,

there is an evolution in international law that points to the fact

that the right to nationality is a human right.65 Therefore, the

state is limited in its discretion to grant or deny nationality.

According to the Court, the current state of development in

international law restricts the discretion of states in two ways:

its laws concerning nationality must respect the equal and full

protection of the law and states have the duty to prevent, avoid

and reduce statelessness.66 The proof for this international

evolution can be found in the 1961 Convention on the Reduction of

Statelessness, the UNCRC, the Convention on the Protection of the

61 Ituango Massacres v. Colombia (2006), Ser. C no. 148, para 179. 62 Ituango Massacres v. Colombia (2006), Ser. C no. 148, para 179.63 Ituango Massacres v. Colombia (2006), Ser. C no. 148, para 180 – 182. 64 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 136. 65 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 138 – 139. 66 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 140.

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Rights of Migrants Workers and the ICCPR.67 The Court then turned

to the 1961 Convention on the Reduction of Statelessness

specifically in order to ‘discover’ the specific obligations for

states in the context of granting nationality.68 It remarked that

the Dominican Republic had signed this treaty 1961.69 However, it

failed to mention that the Dominican Republic never ratified,

although ratification or accession is necessary for the treaty to

be binding upon the state.70 The Court then applied article 1 of

this Convention and the previously established prohibition of

discrimination to the facts of the case.71

Rights of the Child

The Court considers that cases in which the victims are children

are of a particularly grave nature. Therefore, the status of the

alleged victims as children affects the interpretation of other

rights in the Convention.72

The landmark case concerning children’s rights in the Inter-

American human rights system is the case of the “Street Children” (Villagrán

Morales et al.) v. Guatemala.73 In this case, the Court first had to define

what a ‘child’ is under the American Convention. It therefore

turned to article 1 of the UNCRC.74 Furthermore, in assessing which

positive obligations the state has towards children, the Court67 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 140. 68 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 143. 69 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 143. 70 United Nations Treaty Collection, Convention on the Reduction of Statelessness<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en> accessed 14 April 2014; Art. 16 Convention on the Reductionof Statelessness 1961 (UN); Art. 16 Vienna Convention on the Law of Treaties1969 (UN). 71 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 143 – 174. 72 The Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130, para 134. 73 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77. 74 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77,para 188.

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relied heavily on the UNCRC pointing to the evolutionary

interpretation of IHRL.75 More specifically, the Court included the

right to non-discrimination, the state’s duty to provide necessary

and special care, the right to life, the duties concerning

children deprived of their family environment, the right to an

adequate standard of living and the prohibition of inhuman or

degrading treatment.76 In this regard, the Court has stated that

“[t]hese provisions allow [it] to define the scope of the

“measures of protection” referred to in Article 19 of the American

Convention, from different angles”.77 The Court complemented these

duties as laid down in the UNCRC with two additional duties of its

own making, or so it seems (infra). It stated that if the state has

reasons to believe that (street) children are affected by factors

that induce them to commit crimes, the state must increase

measures to prevent crimes and reoccurrence. The state must

further make substantial efforts to rehabilitate these children if

the state apparatus had to intervene following the commission of a

crime.78

Comparative Analysis: does the Court broaden the scope of these Other Treaties?

Indigenous peoples’ land rights: the question of ‘consultation’ v.

‘consent’.

The Inter-American Court has explicitly mentioned the

incorporation of articles 13, 15 and 16 of ILO Convention 169 in

75 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77,para 192 – 195. 76 Articles 2, 3.2, 6, 20, 27 and 37 UNCRC; Case of the “Street Children” (Villagrán Morales etal.) v. Guatemala (1999), Ser. C. no. 77, para 195.77 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77,para 196. 78 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77,para 197.

17

its interpretation of article 21 of the ACHR. It is important to

note that the ILO Convention does require consultation79 in any

matters that may affect indigenous peoples, including any project

that may affect their ancestral lands and resources. However, the

Convention only requires the state to obtain consent80 in case of

relocation of the involved tribal or indigenous people.81 Moreover,

the Convention even foresees in a possibility for the state to

continue with a planned investment or development project that

would cause the relocation of the involved communities in case it

could not obtain consent.82 In contrast, the UNDRIPS, adopted via a

non-binding UN General Assembly Resolution83, does contain the duty

for the state to obtain free, prior and informed consent, not only

in case of relocation84, but also in case of a project that affects

indigenous peoples’ lands and resources.85 Furthermore, the UNDRIPS

does not foresee the possibility for the state to continue with an

investment or development project without the involved

communities’ consent.

The requirement for consent only in case of relocation, as

provided for in ILO Convention 169 seems to go against the finding

of the Inter-American Court in the Saramaka case where consent was

required in case of any large-scale development plan that would

have a major impact in the territory of indigenous or tribal

communities. This apparent contradiction can possibly be remedied

by looking at the subsequent Sarayaku judgment. In this case, the

79 Emphasis added. 80 Emphasis added. 81 Art. 16 (2) ILO Convention no 169 on Indigenous and Tribal Peoples 1989 (ILO).82 Art. 16 (2) ILO Convention no 169 on Indigenous and Tribal Peoples 1989 (ILO).83 UN General Assembly, Resolution 61/295, 13 September 2007; Catarina Krause andMartin Scheinin (eds.), International Protection of Human Rights: A Textbook (Institute forHuman Rights Abo Akademi University 2012), 80. 84 Art. 10 UN Declaration on the Rights of Indigenous Peoples 2007 (UN). 85 Art. 32.2 UN Declaration on the Rights of Indigenous Peoples 2007 (UN).

18

Court did not go into the question of consent, thereby solely

focusing on the duty to consult. It is quite unclear why the Court

chose not to assess the duty to obtain free, prior and informed

consent. There is however a plausible explanation to be found with

the importance that is given to the ILO Convention 169 through the

application of article 29(b) of the ACHR.

ILO Convention 169 is consistently used by the Court to interpret

article 21 of the ACHR in the context of land rights for

indigenous peoples. As stated above, the link between culture and

land, as mentioned in the ILO Convention, was incorporated in the

Awas Tingni case, although not explicitly mentioned until later.

Subsequently, in the Yakye Axa and Sawhoyamaxa cases, the Court did

specifically refer to said Convention. In the Saramaka case, the

Court was again more subtle in its application of the ILO

standards, since Suriname was not a party to the Convention.

However, although the establishment of the three-headed test and

the duty to consult seem to appear out of nothing, they are

clearly a reflection of the standards set in the ILO Convention.86

This again was affirmed in the Sarayaku case. Since this instrument

is to such an extent consistently referred to in every single case

concerning the issue, it can be considered as reflecting

established case-law. Therefore in answering the question whether

the state has a duty to consult rather than to obtain consent, the

ILO Convention 169 plays an important role.

Consequently, we must take a look at the facts of both cases in

considering why the Court required consent in Saramaka and merely

consultation in Sarayaku. In the Saramaka case, there was a danger

86 Arts. 15 and 16 ILO Convention no. 169 on Indigenous and Tribal Peoples 1989(ILO).

19

that the operation of a hydroelectric dam would flood the

Saramaka’s territory and that they consequently would be

relocated. This however, is not the case with the Sarayaku, since

here the government granted an oil concession. It is therefore

possible that in the Saramaka case, the judges applied the

requirement of consent to this particular case while, in their

opinion, this was not necessary in the Sarayaku Case.87 Additionally,

the Court specified in its Sarayaku judgment that the safeguard

concerning the prohibition of denial of the survival of an

indigenous group relates to cases where natural resources are

involved. Turning back to the case of the Saramaka, the Court will

then consider whether the involved natural resources are to such

an extent inextricably linked to the members of the indigenous

communities, so that they contribute to the people’s survival.88 In

the Saramaka case, the government granted a wood logging

concession. Since timber was a natural resource deeply rooted in

the tribe’s religious beliefs and traditional economic

subsistence, this connection was established and therefore consent

was needed. However, in the Sarayaku case, the concession was

granted for oil exploitation, which was not of great cultural

significance to the affected people89, and therefore their consent

was not needed.

87 Monica Jimenez Gonzalez and Dani Bryant, ‘Sarayaku v. Ecuador: lessons infree, prior and informed consultation’ (2012) Corporate Social ResponsibilityLaw Bulletin, <http://www.fasken.com/sarayaku-v-ecuador-lessons-in-free-prior-and-informed-consultation/> accessed 17 April 2014. 88 Saramaka People v. Suriname (2007) Ser. C. no. 172, para 123; Diego Alcala, ‘Indigenous Peoples Right to Property in International Law: A Look at Saramaka People v. Suriname, The Inter-American Court of Human Rights’ (2009), 14 < http://works.bepress.com/diego_alcala/1/ > accessed 17 April 2014. 89 Diego Alcala, ‘Indigenous Peoples Right to Property in International Law: A Look at Saramaka People v. Suriname, The Inter-American Court of Human Rights’ (2009), 6 < http://works.bepress.com/diego_alcala/1/ > accessed 17 April 2014.

20

Consequently, the conclusion could possibly be that the reasoning

of the Court is as follows: if a project has such an extensive

impact on indigenous territory that the consequence is the

relocation of the affected communities and they therefore can no

longer enjoy the use of the natural resources which are

inextricably connected to their survival as a community, the state

has the duty to obtain the community’s free, prior and informed

consent. The ILO Convention 169 places the emphasis on the

relocation of indigenous communities, while the Court is looking

at why relocation would be detrimental to the survival of the

community as such. Lands rarely can be separated from their

natural resources and it’s these resources which are the means of

subsistence for indigenous communities, both economically as

culturally. In sum, on can conclude that the element on which the

Court bases its distinction between consultation and consent, is

the same as the ILO Convention 169: the possible relocation of the

affected people to the detriment of their survival as a group.

International Humanitarian Law: IHL as lex specialis to IHRL or two

separate bodies of law?

The Court has been more hesitant in interpreting the American

Convention through provisions of IHL. The Court however feels

obliged in incorporating rules of IHL, while at the same time

setting clear boundaries. It has stated that “[a]lthough the Court

cannot attribute international responsibility under [IHL], as

such, said provisions are useful to interpret the Convention, in

the process of establishing the responsibility of the State and

other aspects of the violations alleged (…)”.90 90 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 115.

21

In the Mapiripan case, the Court established that the right to

freedom of movement, as provided in article 22 of the ACHR

contained the right to not be forcefully displaced within a state,

referring inter alia to article 17 of AP II. This follows from a

logical series of connections between the sources the Court

mentions. It first referred to the HRC’s General Comment no. 27

concerning the right to freedom of movement within article 12 of

the ICCPR.91 Although the Court did not elaborate on this

paragraph, the General Comment does state in its paragraph 19 that

the right to freedom of movement, containing the right to enter

one’s own country92, also implies the prohibition of enforced

transfer of a population.93 This wording clearly points to the

situation of internally displaced persons (hereinafter “IDP’s”).

After the mention of this General Comment, the Court looked at

article 17 of AP II that contains the prohibition of forced

movement94 of civilians, to consider whether the right not to be

forcefully transferred, as laid out by the HRC, also applied in

the context of a non-international armed conflict. Again, the

Court stayed close within the ambit of the literal wording of

article 17 AP II, to find that the state of Colombia have violated

the right to freedom of movement to the detriment of a number of

IDP’s.

Although not provided for in AP II, the Court went further to

state that states parties are under a positive obligation to grant

IDP’s preferential treatment and to adopt measures to reverse the

effects of their vulnerable situation. The Court derived this from

91 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 168. 92 Art. 12 (4) ICCPR. 93 HRC, General Comment No. 27: Freedom of Movement (Art. 12) (sixty-seventh session) (1999)U.N. Doc CCPR/C/21/Rev.1/Add.9, para 19. 94 Emphasis added.

22

the principle of equality and non-discrimination, as a rule of ius

cogens in international law.95 It further pointed to an Advisory

Opinion it had previously issued in which it had established that

unequal treatment in the form of positive discrimination measures

does not necessarily amount to a violation of the principle of

equality and non-discrimination, if it’s meant to mitigate a

situation of de facto inequality.96 As stated above, the Inter-

American Court does not intend to apply97 rules of IHL, it rather

incorporates them solely to interpret the content of the ACHR in

the context of armed conflict, being duly aware that the existence

of an armed conflict shifts the state’s obligations towards rules

of IHL.98 Seeing this very hesitant and strict position of the

Court and the application of this rule,99 it seems that this

positive obligation in respect of the state only comes into play

when the armed conflict is over and the obligations of the state

shift back to the rules of IHRL. In sum, in this regard the Court

only looked at AP II to find the content of the right to freedom

of movement within the ambit of a non-international armed

conflict, specifically with respect to IDP’s. Additionally, it

then imposed a positive obligation on the state with regard to

IDP’s following the end of the armed conflict, thereby considering

IHL and IHRL as separate and managing to stay very strictly within

the lines of both bodies of law.

95 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 178. 96 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion, OC-18/03(2003), para 86 – 105. 97 Emphasis added. 98 Emiliano J. Buis, ‘The Implementation of International Humanitarian Law byHuman Rights Courts: The Example of the Inter-American Human Rights System’ inRoberta Arnold and Noëlle Quénivet (eds.), International Humanitarian Law and HumanRights Law. Towards a New Merger in International Law (Brill 2008), 285 – 286. 99 “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134, para 182.

23

The 1961 Convention on the Reduction of Statelessness: the duty

for the state to avoid, prevent and reduce Statelessness.

In the Yean and Bosico case, the Court established that states have a

duel obligation in adopting and implementing legislations and

regulations concerning the granting or denial of nationality.

These measures firstly cannot be discriminatory and secondly, the

state has the duty to avoid, prevent and reduce statelessness.

Particularly this second obligation is possibly problematic.

In finding this obligation, the Court referred to article 1(1) of

the 1961 Convention100, article 29 of the Convention for the

Protection of the Rights of all Migrant Workers and their

Families101, article 7 (1) of the UNCRC102 and article 24(3) of the

ICCPR103. However, all these articles entail approximately the same

right: the right of every child to acquire a nationality. This

amalgam of sources therefore only points to a consensus concerning

a child’s right to nationality. Nowhere does it state or can it be

deduced that an individual state has a duty to avoid, prevent and

reduce statelessness, nor that this is a free-standing right that

can be invoked by an individual.

In this regard, it is helpful to study the Introductory Note of

the Office of the U.N. High Commissioner for Refugees (hereinafter

“UNHCR”) to the 1961 Convention.104 In this note, the UNHCR makes

clear that by adopting this Convention, “states contribute105 to the

100 Art. 1(1) Convention on the Reduction of Statelessness 1961 (UN). 101 Art. 29 International Convention on the Protection of the Rights of allMigrant Workers and Members of their Families 1990 (UN). 102 Art. 7(1) United Convention on the Rights of the Child 1989 (UN). 103 Art. 24(3) International Covenant on Civil and Political Rights 1966 (UN). 104 Introductory Note by the Office of the United Nations High Commissioner forHuman Rights to the 1961 Convention on the Reduction of Statelessness, January2011, available at <http://www.unhcr.org/3bbb286d8.pdf > accessed 16 April 2014. 105 Emphasis added.

24

reduction of statelessness over time”. 106 The UNHCR further

emphasized that it is essential that the Convention be widely

adopted in order to mitigate the situation of statelessness across

the globe. 107 It is clear from this that it is the Convention’s

goal, through wide-spread ratifications, to achieve the reduction

and prevention of statelessness. Therefore, the avoidance,

prevention and reduction of statelessness is seen as a global

effort. The individual state does not, on its own, have the duty

to prevent and reduce statelessness. It is through fulfilling the

obligations set out in the Convention that the state,

simultaneously with others, can achieve the eventual goal of the

reduction of statelessness. In sum, there is no evidence that

there exists an individual duty upon a state to prevent and reduce

statelessness.

The UNHCR however also pointed out that the goal of the 1961

Convention to reduce statelessness is fixed in three central

focusses. The Convention first focusses on the prevention of

statelessness at birth, translated in the duty for the states to

grant nationality to children born on their territory as provided

in article 1 of the 1961 Convention. The second emphasis is on the

prevention of statelessness later in life with the prohibition of

renunciation of nationality from states’ nationals, provided

certain exceptions. Thirdly, the Convention requires to avoid

statelessness in the context of transfer of territory. 108 Seeing

106 Introductory Note by the Office of the United Nations High Commissioner forHuman Rights to the 1961 Convention on the Reduction of Statelessness, January2011, available at <http://www.unhcr.org/3bbb286d8.pdf > accessed 16 April 2014. 107 Introductory Note by the Office of the United Nations High Commissioner forHuman Rights to the 1961 Convention on the Reduction of Statelessness, January2011, available at <http://www.unhcr.org/3bbb286d8.pdf > accessed 16 April 2014. 108 Introductory Note by the Office of the United Nations High Commissioner forHuman Rights to the 1961 Convention on the Reduction of Statelessness, January2011, available at <http://www.unhcr.org/3bbb286d8.pdf > accessed 16 April 2014.

25

that the Court applied its established principle of the state’s

duty to prevent statelessness through article 1 of the 1961

Convention does suggest that the Court is somehow aware of the

fact that this broad and advanced duty does not fall on one state

alone.

The UN Convention on the Rights of the Child: the duty to prevent

juvenile crimes and the duty to rehabilitate.

The Court incorporates the state’s positive obligations arising

from the UNCRC through article 19 of the ACHR in cases concerning

children’s rights. The UNCRC is the most widely signed treaty in

the world, with only the United States and Somalia not having

signed up.109 In looking at the provisions of the UNCRC in the

Villagrán Morales case, the Court stated it was very clear that the

state had violated the victim’s rights without elaborately

applying these provisions.

However, the Court also stated that if the state has reasons to

believe that children are affected by factors that induce them to

commit crimes, the state must increase measures to prevent crimes

and reoccurrence. The state must further make substantial efforts

to rehabilitate these children if the state apparatus had to

intervene following the commission of a crime. The Court derived

these obligations from two soft law instruments: the UN Directives

for the Prevention of Juvenile Justice and the UN Minimum Rules

for the Administration of Justice for Minors.110 Both instruments

109 United Nations Treaty Collection, UN Convention on the Rights of the Child <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en > accessed 16 April 2014. 110 Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77,para 197, notes 37 and 38.

26

were adopted by the UN General Assembly via Resolution.111 These

resolutions are not binding on states.112 Therefore they do not

create duties for the states nor enforceable rights.

It is however regrettable that the Court did not refer to the

UNCRC in this regard. Article 40 of the UNCRC does contain the

duty for the state to rehabilitate children after the commission

of a crime.113 Later on, the Committee on the Rights of the Child,

the monitoring body for the UNCRC, has stated in its General

Comment no. 10 on Children’s Rights in Juvenile Justice that “a

juvenile justice policy without a set of measures aimed at

preventing juvenile delinquency suffers from serious shortcomings.

States parties should fully integrate into their comprehensive

national policy for juvenile justice the United Nations Guidelines

for the Prevention of Juvenile Delinquency.”114 Although General

Comments of UN Treaty Bodies are not legally binding, they are

considered as authoritative interpretations of state’s obligations

under the treaty.115 In sum, it seems that the Court in part could

have made it’s argument for the inclusion of these additional

duties of the state much stronger by referring to the

abovementioned sources, rather than at the soft law instruments

themselves.

111 UN General Assembly, Resolution A/RES/45/112, 14 December 1990; UN GeneralAssembly, Resolution A/RES/40/33, 29 November 1985. 112 Catarina Krause and Martin Scheinin (eds.), International Protection of Human Rights: ATextbook (Institute for Human Rights Abo Akademi University 2012), 80. 113 Art. 40 (1) & (4) UN Convention on the Rights of the Child 1989 (UN); RachelHodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child(UNICEF, 2007) 602. 114 UN Committee on the Rights of the Child, General Comment no.10: Children’s Rights inJuvenile Justice (2007) CRC/C/GC/10, para 17. 115 Conway Blake, ‘Normative Instruments in International Human Rights Law:Locating the General Comment’ (2008) Center for Human Rights and Global JusticeWorking Paper Number 17, 2008, 23, 30, 33<http://www.chrgj.org/publications/docs/wp/blake.pdf > accessed 17 April 2014.

27

Conclusion

From the study of the abovementioned cases, it seems that the

Court is in fact not overstepping its boundaries. Concerning

indigenous people’s land rights, the Court is de facto employing the

same differentiating factor as the ILO Convention 169 although it

places the onus elsewhere. With regard to the interpretation of

rules of IHL, the Court is clearly very respectful of the

boundaries between IHL and IHRL. The declaration of the Court that

a state has the duty to avoid, prevent and reduce statelessness,

although startling, seems to be more a declaration of a principle

by the Court than the actual setting of a state’s duty in this

regard. Lastly, the Court has incorporated the UNCRC in its case-

law concerning children’s rights since article 19 of the ACHR is

so vague and generic. Here, the Court is also not crossing the

line, although it could have made its argument stronger by being

more explicit about its adherence to those lines.

In sum, although the Court sometimes prefers a very principled and

declarative approach, it does in fact not broaden the scope of the

studied other treaties through the application of article 29(b) of

the ACHR. Indeed, the Court is not always very clear in the origin

of its inspiration, nor in its language used to articulate duties

for the states in this context. However, upon having a closer look

at how the Court incorporates other treaties and subsequently

applies the standards set, it becomes clear that the Court manages

to stay within the lines drawn by the drafters and monitoring

bodies of these other treaties.

28

TABLE OF AUTHORITIES

TREATIES AND SOFT LAW INSTRUMENTS

U.N.

Convention on the Reduction of Statelessness 1961 (UN).

International Covenant on Civil and Political Rights 1966 (UN).

International Covenant on Economic, Social and Cultural Rights 1966 (UN).

Vienna Convention on the Law of Treaties 1969 (UN).

United Nations Convention on the Rights of the Child 1989 (UN).

ILO Convention no 169 on Indigenous and Tribal Peoples 1989 (ILO).

International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families 1990 (UN).

OAS

American Convention on Human Rights 1969 (OAS).

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) (OAS).

Inter-American Convention on Forced Disappearance of Persons (1994) (OAS).

Inter-American Convention against All Forms of Discrimination and Intolerance (2013) (OAS).

Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance (2013) (OAS).

Soft Law Instruments

UN Minimum Rules for the Administration of Justice for Minors 1985(UN).

UN Directives for the Prevention of Juvenile Justice 1990 (UN).

United Nations Declaration on the Rights of Indigenous Peoples 2007 (UN).

29

Introductory Note by the Office of the United Nations High Commissioner for Human Rights to the 1961 Convention on the Reduction of Statelessness, January 2011, available at <http://www.unhcr.org/3bbb286d8.pdf > accessed 16 April 2014.

30

CASE LAW OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Contentious jurisdiction

Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (1999), Ser. C. no. 77.

Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) Series C no. 79.

Case of the Yakya Axa Indigenous Community v. Paraguay (2005) Ser. C no. 125.

Case of the “Mapiripan Massacre” v. Colombia (2005) Ser. C. no. 134.

Case of the Girls Yean and Bosico v. Dominican Republic (2005), Ser. C. no. 130.

Case of the Sawhoyamaxa Indigenous Community v. Paraguay (2006) Ser. C. no. 146.

Case of the Ituango Massacres v. Colombia (2006), Ser. C no. 148.

Case of the Saramaka People v. Suriname (2007) Ser. C. no. 172.

Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (2012) Ser. C no. 245.

Case of the Pacheco Tineo Family v. Bolivia (2013) Ser. C. no. 272.

Concurring Opinion Judge Eduardo Ferrer Mac-Gregor Poisot, Case of Liakat Ali Alibux v. Suriname (2014) Series C no. 276.

Advisory Opinions

“Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion, OC-1/82 (1982).

Juridical Condition and Human Rights of the Child, Advisory Opinion, OC-17/2002(2002).

Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion, OC-18/03 (2003).

U.N. SOURCES

General Assembly Resolutions

31

UN General Assembly, Resolution A/RES/40/33, 29 November 1985.

UN General Assembly, Resolution A/RES/45/112, 14 December 1990.

UN General Assembly, Resolution 61/295, 13 September 2007.

U.N. Treaty Bodies

HRC, General Comment No. 23: The rights of minorities (Art. 27) (Fiftieth session) (1994) U.N. Doc.CCPR/C/21Rev.1/Add.5.

HRC, General Comment No. 27: Freedom of Movement (Art. 12) (sixty-seventh session) (1999) U.N. Doc CCPR/C/21/Rev.1/Add.9.

HRC, Länsman et al. v. Finland (Fifty-second session) (1994) U.N. Doc. CCPR/C/52/D/511/1994.

HRC, Apirana Mahuika et al. v. New Zealand (Seventieth session) (2000) U.N. Doc.CCPR/C/70/D/547/1993.

CESCR, Consideration of Reports submitted by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations on Russian Federation (Thirty-first session) (2003) U.N. Doc. E/C.12/1/Add.94.

UN Committee on the Rights of the Child, General Comment no.10: Children’s Rights in Juvenile Justice (2007) CRC/C/GC/10.

BOOKS

Buis E.J., ‘The Implementation of International Humanitarian Law by Human Rights Courts: The Example of the Inter-American Human Rights System’ in Roberta Arnold and Noëlle Quénivet (eds.), International Humanitarian Law and Human Rights Law. Towards a New Merger in International Law (Brill 2008).

Burgorgue-Larsen L. and Úbeda de Torres A., The Inter-American Court of Human Rights. Case-Law and Commentary (OUP 2011).

Hodgkin R. and Newell P., Implementation Handbook for the Convention on the Rights of the Child (UNICEF 2007).

32

Krause C. and Scheinin M. (eds.), International Protection of Human Rights: A Textbook (Institute for Human Rights Abo Akademi University 2012).

Pasqualucci J.M., The Practice and Procedure of the Inter-AmericanCourt of Human Rights (Cambridge University Press 2012).

Rinaldi K., ‘Le Droit des Populations Autochtones et Tribales à laPropriété dans le Système Intermericain de Protection des Droits de l’Homme’ in Ludovic Hennebel and Hélène Tigroudja (eds), Le Particularisme Interamericain des Droits de l’Homme (Editions A. Pedone 2009).

ARTICLES

Alanís E.C.O., ‘Indigenous Peoples’ Rights and the Extractive Industry: Jurisprudence from the Inter-American System of Human Rights’ (2013) Goettingen Journal of International Law 187.

Alcala D., ‘Indigenous Peoples Right to Property in International Law: A Look at Saramaka People v. Suriname, The Inter-American Court of Human Rights’ (2009) < http://works.bepress.com/diego_alcala/1/ > accessed 17 April 2014.

Blake C., ‘Normative Instruments in International Human Rights Law: Locating the General Comment’ (2008) Center for Human Rights and Global Justice Working Paper Number 17, 2008, 23, 30, 33 <http://www.chrgj.org/publications/docs/wp/blake.pdf > accessed 17April 2014.

Gonzalez M.J. and Bryant D., ‘Sarayaku v. Ecuador: lessons in free, prior and informed consultation’ (2012) Corporate Social Responsibility Law Bulletin, <http://www.fasken.com/sarayaku-v-ecuador-lessons-in-free-prior-and-informed-consultation/> accessed17 April 2014.

Lixinski L., ‘Treaty Interpretation by the Inter-American Court ofHuman Rights: Expansionism at the Service of the Unity of International Law’ (2010) The European Journal of International Law 585.

Pasqualucci J.M., ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human

33

Rights in Light of The United Nations Declaration on the Rights ofIndigenous Peoples’ (2009) Wisconsin International Law Journal 51.

MISCELLANEOUS

ILO Normlex, Ratifications for Nicaragua, < http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102780> accessed 14 April 2014.

United Nations Treaty Collection, Convention on the Reduction of Statelessness <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en> accessed 14 April 2014

United Nations Treaty Collection, UN Convention on the Rights of the Child <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en > accessed 16 April 2014.