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In doing so, the government needed to decontaminate the allegedly polluted water resources and ensure that the Mayan individuals had health assistance. The response of the Guatemalan government, as expected, was to reject the allegations of contamination. Due to this pressure and to a series of reports from the Guatemalan government, the Commission, on 7 December , modified the measures so that they only ensured access to potable water resources for 18 Mayan communities.

The backlash against the precautionary measures that the Commission ordered had deep implications for its functionality. One of the main features of the process was to determine the parameters by which the Commission could use measures to require that states take action. This process involved all OAS member states, including those that had not ratified the American Convention.

In this sense, although both member and nonmember states recognized the nature and importance of these measures — even without questioning the legal basis of these procedures — they stressed the need to clearly define legal concepts such as urgency and gravity, clarify the time frames and detail the procedures. From then on, member states such as Uruguay proposed the development of a best practices guide to ensure a better reaction from these states.

More importantly, the new resolution detailed that such measures should be adopted through reasoned resolutions and should include time frames that the Commission must adhere to. Guatemala ratified the jurisdiction of the Court on the 9 March This reservation specified that the Court could entertain an alleged human rights violation only after its ratification. During the s and s, the Guatemalan state was condemned for a series of human rights violations because its authorities did not investigate grave crimes, including pre violations; the authorities instead maintained the context of impunity.

In a second ruling, the Guatemalan Constitutional Court went even further. On this second occasion, although the Constitutional Court recognized the need to comply with international judgments, it stated that this compliance and execution must be bound with other constitutional rights and universal values. As a side note, it is necessary to mention that this attitude is not confined to the Guatemalan Court. The response of the Court with regard to the Guatemalan Constitutional Court was unilateral. The Court did not engage in dialogue with the Guatemalan Constitutional Court, instead deeming its conduct to be protecting impunity.

Moreover, the Court ruled in that, since , Guatemala had failed to comply with the Inter-American Convention on Forced Disappearance of Persons of In this circumstance, the crime of forced disappearance would be applied retroactively, thus violating internationally recognized principles such as nullum crimen sine lege and the nonretroactivity of ratione personae.

In this sense, the Court was dismissive of its own jurisprudence, which stated that, in a democratic system, criminal or administrative punitive norms must preexist in order to ensure legal certainty and the fulfilment of the principles of the legality and nonretroactivity of punitive norms. However, the Court did not respond to these claims and instead declared the state in desacato contempt and in breach of its conventional duties.

It must also be stated that, more recently, the Court introduced similarly through a back door more obligations for its member states. However, aside from its implementation of questionable principles, the Court found Surinam responsible for breaching human rights obligations as a result of not applying the Ruggie Framework at the beginning of a mining operation in and during the development of the first environmental impact in — years before the actual development of the framework. Using the doctrine of conventionality control, the Court states that its jurisprudence shall be seen as the most important guidelines for member states to comply with human rights obligations.

Therefore, the Ruggie Framework, as questionable as it is, has become an obligation for all member states. Costa Rica has, since the midth century, been a stable democracy and has been successful in promoting the rule of law and in guaranteeing human rights through its courts. In , the Sala Cuarta reviewed a suit against an executive decree that regulated in vitro fertilization IVF treatments in Costa Rica.

This interpretation provided for an expansive view on the right to life, according to which any technology that could not provide comprehensive protection to embryos would violate the right to life. In its obiter , the Court reviewed the developments of the other human rights regimes, both universal and regional. However, this analysis was done using a strict functionalist approach. The functionalist method of comparison is based on exercising the mere identification of potential similar problems across legal regimes so as to determine possible solutions.

The Court, through its comparative exercise, concluded that, although there is insufficient legislative material to draw comparison, the protection of embryos is not an absolute obligation and that, moreover, embryos should not be considered in the same way as human beings. In , the Sala Cuarta entertained a new suit against a different IVF executive decree that complied with the judgment of the Court.

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Since its transition from military to civil rule, Uruguay has been a stable and leading democracy in the region. The majority of the public voted again in favor of maintaining the domestic amnesty. In , the Court reviewed the Uruguayan amnesty, which presented an impediment to criminal investigations related to human rights violations committed during the Uruguayan dictatorship.

The Court displayed, again, a comparative analysis of universal and regional sources regarding amnesties.

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The Court fully applied its Inter-American view on amnesties in the Gelman case, without any robust consideration of the two referendums held in Uruguay in and The fact that the Ley de Caducidad was in full force in the country was the main reason that the Court determined that Uruguay was responsible in the Gelman case. The Court ultimately concluded that public scrutiny did not grant legitimacy to the amnesty law, determining that the Ley de Caducidad lacked legal effects.

For Roberto Gargarella, the Court ignored the strong democratic deliberation of the Uruguayan society with respect to Uruguayan amnesty. As a consequence, the Uruguayan Supreme Court ruled that reviewing the constitutionality of norms must be done under the Uruguayan constitutional regime. This argument thus precludes judgments of the Court from becoming constitutional bars of interpretation.

Most of the regional scholarship, as displayed in Part II , emphasizes the constitutional roles of both the Court and the Commission within the Inter-American legal regime. In particular, as explained in Part I and Part II , the Commission and Court were part of a broader movement to bring human rights violations worldwide into account.

Major Constitutional Developments in Japan in the First Decade of the Twenty-first Century.

The Inter-American Human Rights regime is at a stage in which its institutions need to change their stances on states and to grow organically with them. In other words, the Commission and the Court need to evolve their institutional viewpoints, which were adopted in the early s. A recent development in the region — the constitutional block — represents a new wave of human rights recognition and judicial activism. The Court, when analyzing human rights violations and drawing on sources, needs to move beyond its functionalist method.

Proper comparison, using a sociological perspective, needs to be grounded in the study of epistemological reasons and other conditional factors — not only those of the system but also those of the legal regimes and states under review, and those of other states and other human rights regimes. An example of this is the El Mozote judgment. In this case, the Court recognized the distinctiveness of the Salvadorian peace process and the different characteristics of its amnesty, which was born out of an armed conflict. In its decision, the Chamber reviewed the constitutionality of the Salvadorian amnesty.

Interestingly, the Chamber engaged horizontally with the El Mozote ruling and with the broader jurisprudence of the regional court. The Chamber recognized that, in the negotiation of the peace process, amnesty for grave violations of human rights was never mentioned. The result was that Salvadorian amnesty was declared to be limited, so amnesty was secured only for those crimes that did not represent grave violations of human rights.

Therefore, the most interesting aspect of the Salvadorian decision was that it presented the Chamber as a catalyst in the bottom-up construction of democratic values in a dialectic manner. The Chamber placed itself as a peer to the Court and as being in dialogue with it. The regional court can further apply this lesson when trying to require compliance from domestic courts.

Nowadays, the Commission only serves as an extra filter in a system in which states are criminalized and condemned twice for a single process. Being more engaging with member states and their domestic institutions would involve reimagining the role of the Commission to allow more institutional space for negotiated solutions between victims and member states, as mentioned earlier with respect to the Belo Monte and Marlin cases.

In a context of post-transitional democracies in Latin America, the time has come to rethink the role of the Inter-American institutions. The financial crisis that the Commission suffered in illustrates the need for constructing different relationships among Inter-American institutions, member states, victims and civil organizations. Although the crisis has officially been declared to be overcome, we believe that deep reforms are needed within the System to enable concrete changes in the structural conditions of inequality that prevent Latin American citizens from fully enjoying their rights.

Davis Eds. ICCAL is a legal but also a cultural and political project steeped in the structural transformation of public law. It is characterized by its objectives, key concepts and challenges. East Asian constitutionalism in comparative perspective Tom Ginsburg; 3. Major constitutional developments in Japan in the first decade of the twenty-first century Shojiro Sakaguchi; 4. Upgrading constitutionalism: the ups and downs of constitutional developments in South Korea since Jongcheol Kim; 5.

Constitutional change in North Korea Dae-kyu Yoon; 6. Chinese constitutional dynamics: a decennial review Wang Zhenmin and Tu Kai; 7. A decade of changing constitutionalism in Taiwan: transitional and transnational perspectives Jiunn-rong Yeh and Wen-Chen Chang; 8. Hong Kong's constitutional journey: — Johannes Chan; 9.

Constitutional developments in Vietnam in the first decade of the twenty-first century Bui Ngoc Son; Constitutionalism in Burma, Cambodia and Thailand: developments in the first decade of the twenty-first century Kevin Y. Tan; Constitutional developments in Malaysia in the first decade of the twenty-first century: a nation at the crossroads H. Lee; Philippine constitutional law: Republican institutions and populist politics Raul C. Pangalangan; Promoting democracy and finding the right direction: a review of major constitutional developments in Indonesia Nadirsyah Hosen; Satisfaction is guaranteed with every order.

Kevin Tan | National University of Singapore - gyqacyxaja.cf

See details. Buy It Now. Add to cart. Be the first to write a review About this product. About this product Product Information Examining developments in the first decade of the twenty-first century, this authoritative collection of essays studies the evolving practice of constitutional law and constitutionalism in Asia. It provides a comprehensive overview of the diverse constitutional issues and developments in sixteen East, Southeast and South Asian countries.

It also discusses the types of constitutionalism that exist and the general trends in constitutional developments whilst offering comparative, historical and analytical perspectives on Asian constitutionalism. Written by leading scholars in the field, this book will be of great interest to students and scholars alike. Additional Product Features Dewey Edition. Show More Show Less.