42
*
*
145. As it has already indicated (supra para. 40), the Inter-American Court is competent
to interpret and apply all the provisions of the American Convention, not only those that
recognize specific rights, but also those that establish general obligations, such as those
arising from Articles 1 and 2 of the Convention, regularly interpreted and applied by the
Court, as well as other provisions, including the norms of interpretation established in
Article 29 of this instrument.
146. Regarding the so-called “Federal Clause” established in Article 28 of the American
Convention, on previous occasions the Court has had the opportunity to refer to the scope
of the international human rights obligations of federal states. Recently, in Escher et al. the
Court indicated that, under its contentious competence, the Court had established clearly
that “case law, which has stood unchanged for more than a century, holds that a State
cannot plead its federal structure to avoid complying with an international obligation.”131
This issue was also dealt with under its advisory competence, establishing that
“international provisions that concern the protection of human rights in the American States
[…] must be respected by the American States parties to the respective conventions,
regardless of whether they have a federal or a unitary structure.”132 Thus, the Court
considers that States Parties must guarantee and ensure respect for all the rights embodied
in the American Convention to all persons subject to their jurisdiction, without any limitation
or exception based on their internal structure. The legal system and practices of the entities
that form a Federal State party to the Convention must conform thereto.133
147. In the instant case, the Commission and the representatives alleged non-compliance
with Articles 2 and 28 of the Convention owing to the supposed absence of public policies
that could have prevented, on the one hand, the murder of Mr. Garibaldi and, on the other
hand, the proliferation of armed groups carrying out clandestine evictions. In this regard,
the Court has already determined (supra paras. 20 and 22) that any fact prior to the
State’s acceptance of its compulsory jurisdiction, in other words prior to December 10,
1998, is outside the Court’s temporal competence. Consequently, the Court does not have
competence to examine whether Brazil provided the necessary measures to prevent Sétimo
Garibaldi’s death. Moreover, according to the Inter-American Commission’s application, the
purpose of this case is constituted by the errors and omissions in the Police Investigation
into the death of Mr. Garibaldi in violation of Articles 8 and 25 of the Convention and not
the situation with regard to evictions in the state of Paraná.
148. In addition and lastly, the Court considers, as it did in the Case of Escher et al.,134
that the allegation about the possible failure to observe the obligations arising from Article
28 of the Convention should refer to a fact with sufficient entity to be considered as true
non-compliance. In the instant case, a comment by the State during a working meeting
regarding the difficulties in communicating with a component of the Federal State does not,
in itself, mean or entail non-compliance with this provision. The Court notes that, during
131
Case of Escher et al., supra note 9, para. 219. Cf. Garrido and Baigorria v. Argentina. Reparations and costs.
Judgment of August 27, 1998. Series C No. 39, para. 46.
132
The Right to Information on Consular Assistance within the Framework of the Guarantees of Due Process of
Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 140. The Court has ruled similarly in
provisional measures: “Brazil is a federal State, and […] the Urso Branco Prison is located in one of its federative
units; however, this does not exempt the State from complying with its protection obligations. […] The State must
organize its internal structures and adopt all necessary measures, in accordance with its political and administrative
structure, to comply with these provisional measures.” Matter of the Urso Branco Prison. Provisional measures with
regard to Brazil. Order of the Inter-American Court of Human Rights of May 2, 2008, fourteenth considering
paragraph.
133
Cf. Case of Escher et al., supra note 9, para. 219.
134
Cf. Case of Escher et al., supra note 9, para. 220.
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