Whether there is multilevel protection of Human Rights in the International System or not, and, if so, how it manifests itself in its different aspects: national and international. By analyzing the relationships between different levels of protection of subjects of law and observing the different institutionalized spaces in which convergence between the two systems is generated, I hope to be able to demonstrate my hypothesis in this brief study.

 

In my view, in the Inter-American System, which is where I will develop my argument, multilevel protection exists and is revisiting the traditional explanation of the relationship between international and national systems. The classical thesis of subsidiarity fails to take into account comprehensively the phenomenon of convergence between systems for human rights protection and it is therefore necessary to extend the criteria explaining this relationship.

 

 

 

One of the traditional views of the relationship between international law and constitutional law has been the perception of the international system as being subsidiary to the national system. Traditionally, it has been considered that international law should be applied only when the domestic system failed to respond to specific fundamental rights violations. In this sense, it has been assumed that the international system plays a role only when the domestic mechanisms of States have failed.

 

This traditional idea is that international protection is triggered or motivated by failure of protection in the domestic sphere. This is the explanation that traditionally justifies why international protection comes to be exercised in the human rights field.¹

 

1.2 Incorporation of IHRL and the Complexity of Relations 
 

In Europe and our region, the constitutional processes of incorporating International Human Rights Law have had both theoretical and practical consequences. Over the last three decades, we have gone from formal to substantive incorporation, where internationally enshrined rights fulfill an important regulatory and not merely programmatic role.²

 

This broader and deeper use of International Law has been motivated domestically not simply as a system triggered in the face of failure of domestic protection – as was the traditional explanation – but as the development of certain theories to explain the relationship between systems on the basis of complementarity. In other words, existing relationships between constitutional and international systems are complementary in nature, and the contents of rights and their protection are complex, where it is not enough to cite the rule or look at domestic protection systems; both the rule and protection at international level have to be taken into account.³

 

This perspective seems to me to be the starting point, opening the debate on multilevel protection of human rights. The main question to determine is whether there are two systems of protection – domestic and international - or whether there is a more complex relationship between the levels of protection.

 

 

When we speak about multilevel protection we are referring to an institutional design of human rights protection, expressed at national and international levels, having an integrated role to play. Thus multilevel protection differs from protection that is compartmentalized or subject to different instances precisely because these can simultaneously converge, and this is perhaps one of the main differences. It is also differentiated from a single form of protection, i.e. from protection that disregards differences at national and international levels, because it maintains the idea that both systems operate in different areas or spheres, and that each one has its own objectives and criteria for performance, each being able to play a role in specific cases in an integrated or parallel manner without losing sight of the differences between the two.

 

I will provide some examples below that appear to concretize this idea of multilevel protection; I will address three areas where multilevel protection is provided; I will develop the bases that justify it; and, lastly, I will formulate some considerations about the effect of this process in the area of jurisdiction.

 

 

2.1.1. Exhaustion of Domestic Remedies 
 

This is the most traditional example justifying protection by separate instances, and the classical thesis to support the idea that one system operates subsidiary to another, not as multilevel protection. Indeed, it seems to me that there are elements specifying all this under the general principle of exhaustion of domestic remedies.

 

However, if we look closely at the exceptions to this principle, which are envisaged in different international instruments, these are precisely in the area of multilevel protection, namely omission of the exhaustion of domestic remedies, relating not only to where resources do not exist but also to where there are spaces for differentiated assessment, which means that even though these resources do exist, they are unable to fulfill the objectives assigned to them, or potentially to be in a position to do so, there has been a delay in implementing timely justice at domestic level. These two exceptions already mentioned generate and enable participation of the international system with respect to cases in the national arena. In other words, this separation between levels becomes rather more blurred, including from the very classical perspective of subsidiary protection.

 

A clear example of the scope of these exceptions is art. 46.2 of the ACHR, which establishes exceptions to the exhaustion of domestic remedies:

 

"2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when:

 

a) the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;

 

b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

 

c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies".

 

2.1.2. Enforcement of Judicial Decisions and Their Impact on States Other Than Parties to the Litigation Process
 

It seems interesting to me to raise the question of enforcement of judicial decisions in the logic of multilevel protection from the following perspective: when national protection fails and recourse is had to instances of international protection, the State must execute the respective judicial decisions handed down (art. 68.1 American Convention⁴). As a result, there should be no further discussion on the binding requirement to enforce judicial decisions dictated by the Court in cases where the State participates. The complexity resides in the issue of how or how far sentences are mandatory for other States under different processes.

 

Multilevel protection opens a discussion of considerable relevance, to the extent that jurisprudence from resolutions handed down to third-party States may have a regulatory impact on such States, which are part of the system but have not been party to a case where a specific judicial decision has been handed down. Indeed, to the extent that such a third party State does not comply with standards set by jurisprudence, its international responsibility will be engaged. In order not to incur international responsibility in contradiction to standards established by jurisprudence, States within the system – albeit not parties to specific case – should take such standards into consideration in order to avoid jeopardizing their own international responsibility (article 62.1 American Convention⁵). This is because the State concerned is already aware of the interpretation adopted by the body interpreting the Convention – the IACHR – in a case comparable to the one to be resolved in the domestic arena.

 

In the exercise of this domestic or national discussion, an interesting question is not why such jurisprudence is binding (article 62 American Convention⁶), but what would authorize a State authority to invoke the international responsibility of a State or knowingly jeopardize a State’s international responsibility? This is the practical impact that a multilevel protection has, which takes the fulfillment of international obligations seriously.

 

Again, from the more classic argument of the relationship between systems, there are expressions of this multilevel protection as described above.

 

 

At international level, there are not only areas of protection from human rights violations, but there are also procedures aimed at the control and accompaniment of States in implementing their obligations. These procedures also operate in the logic of a more complex relationship in the national and international field that cannot simply be explained as a subsidiary expression of the international level.

 

 

Reports issued by the Inter-American Commission have an impact at domestic level, mainly generating processes for discussion and implementation of measures. There are country and thematic reports relating to topics that may be common to different countries in the region, or to a topic within a country. Why can this space not be understood from a subsidiary logic or one of unity? This is because a dynamic totally different to a subsidiary one is generated, namely one that understands that international protection can serve when operating at domestic level. Here we are faced with a procedure that creates space for dialogue between the domestic level, the State or any element of State activity, which is in contradiction with the State’s international obligations or its monitoring bodies. The objective is to generate internal, preventive and remedial transformation.

 

3.2. Thematic Hearings and the Role of Rapporteurs 
 

This is one of the most interesting forms of action at the current time. They have proven to be an effective mechanism to denounce situations before theCommission and oblige the State to take measures at the domestic level, without referring to traditional mechanisms, particularly in contentious cases.⁷For example, the Central Unitaria de Trabajadores (CUT) (the Central Workers’ organization) brought the State of Chile to the Commission regarding the conditions of freedom of association, workers’ rights, and strike.⁸ The role of thematic hearings, in which civil society participates, has great relevance, bringing the State before the international body and generating a dialogue under equal conditions and under the monitoring of a body for human rights protection.

 

For their part, rapporteurs address topics that have an impact both at domestic and international level. For instance, the work of the Special Rapporteur for Freedom of Expression is a clear example of the impact that this type of control can have on countries, without the need/obligation to wait until there may be any shortcomings on the part of domestic bodies.⁹

 

These are clear examples of a new form of understanding of the relationship between States, individuals and the role played by the system of protection, which obviously has a place in the multilevel logic.

 

 

 

In the most robust form of protection – contentious cases – through which concrete measures are taken that the State has to adopt at domestic level in order to avoid those acts leading to the violation of rights recurring. The basis of such measures is the principle of prevention, which appears here in a multilevel dimension.

 

The Inter-American Court of Human Rights distinguishes itself from its European equivalent in regard to damages, as the breadth and depth of its measures can result, among other things, in regulatory amendments, public policies, and training measures for officials. These measures go beyond a specific case, and therefore impact on other areas of operation.¹⁰

 

These guarantees seek to transform causes or basic elements having permitted or provoked a human rights violation. It generates a dialogue with the State beyond the specific case thereby giving rise to a quite new and different relationship than that of the international with the domestic system. In other words, measures guaranteeing non-repetition should be proposed to States on a mandatory basis, such as normative regulatory reforms, at different levels, and, including constitutional, legal, public policies, etc., which are represent a totally different form way of looking at the relationship between the domestic and the international levels. These measures have the objective aim to transforming the reality beyond the specific case. In addition, they also serve as general criteria on for the content and scope of conventional rights, applicable to all States parties to the Convention.¹¹

 

We therefore have before us measures that, even though they may be pronounced post facto, have a preventive and transformative effect linked not only to the specific victims of the case for which they are pronounced. While covering substantive (institutional and cultural) aspects, protection acquires a nature other than individual remedial measures. They can thus be justified under traditional theories on the relationship between national and international protection but their scope cannot be justified without expanding the explanation to multilevel protection.

 

4.2. Precautionary and Provisional Measures 
 

Provisional and precautionary measures in the Convention (art. 63.2 AHRC), envisaged in the Commission’s Rules of Procedure, were originally intended as a form of protection of the endangered rights of victims or third parties, but in practice they have been transformed into precautionary measures. These measures have been expanded in such a way that they are leading to a form of international protection making it possible to intervene at domestic level in parallel to national measures. 

 

The Commission establishes precautionary measures and the Court provisional measures. As mentioned, they have been applied as a form of protection for a victim or witnesses in specific cases, for example in the Velásquez Rodríguez case.¹² However, the provisional measures are now no longer just those of the Velásquez Rodríguez case but cover a wide range of issues. They provide a sort of international protection, which is interesting in that the provisional measure can go beyond settlement of a case, over and above whether the case is to be brought or not. The Court is very cautious in this respect; for example, in the Casta?eda v. Mexico case¹³,it declared that it could not proceed to take measures, as this would be tantamount to resolving the case. However, there have been other cases offering extremely interesting analysis, completely changing the traditional logic of the relationship between the systems, and allowing the international system to take measures with regard to a case still under consideration at domestic level. On this nature of greater complexity, the Court has recently noted in the matter concerning B. with regard to El Salvador, the scope for both provisional and precautionary measures:
 

“This Court has established that under international human rights law, provisional measures are not merely preventive, in that they preserve a juridical situation, but rather are essentially protective, since they protect human rights in as much as they seek to avoid irreparable damage to persons [...]. Regarding their protective nature, this Court has indicated that, provided that the basic requirements are met, provisional measures become a real jurisdictional guarantee of a preventive nature because they protect human rights in as much as they seek to avoid irreparable harm to persons.”¹⁴

 

The Court has recently issued provisional measures with regard to a case, which was not submitted to hearing. In its resolution, the Court justified the measures in the following sense:

“This request for provisional measures does not arise from a case that the Court is hearing, nor has an initial petition been lodged before the Inter-American Commission for the facts that substantiate the request for provisional measures. However, this Court has established in previous cases that, ‘owing to the protective nature of provisional measures, exceptionally, these may be ordered, even when there is no contentious case before the inter-American system, in situations that, prima facie, may result in a grave and imminent impairment of human rights.’ (Considering 4).”¹⁵

 

Although there is some confusion in the use of the terms, it is interesting to see how the IACHR itself is assuming this idea of multilevel control. On the characteristics of the control exercised by the Court, the latter speaks of a ‘dynamic and complementary control to the conventional obligations’ relating to observance and guarantee. The emphasis of the Court is precisely in the relationship between the national authorities and international bodies. The resolution states:“This means that, as a consequence of the binding effectiveness of the American Convention on all its States Parties, a joint dynamic and complementary control of the treaty-based obligations of the States to respect and ensure human rights has been generated between the domestic authorities and the international bodies (in a complementary manner), in order to develop and harmonize decision-making criteria. Thus, the jurisprudence of this Court refers to domestic case law in order to found and conceptualize the violation of the American Convention in a specific case. In other cases, it has recognized that, in line with international obligations domestic bodies, institutions or courts have adopted adequate measures to remedy the situation that gave rise to the case; the alleged violation has already been resolved;reasonable reparations have been made,or an adequate control of conventionality has been implemented.”¹⁶

 

 

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

 

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

 

 

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

 

 

Article 29¹⁷of the American Convention on Human Rights is the major common link; it provides a regulatory basis and consists of a principle, taken from the Vienna Convention, that the objective and purpose of a customary practice should be taken into account in interpreting rules. This principle operates on the basis of an integrated protection from both national and international systems. The basic criterion is best protection, not its origin.¹⁸

 

The first application of the pro homine principle is interpretative preference, and this is the main one used by the Court. Its scope is reflected in Advisory Opinion No. 5:“The foregoing conclusion clearly follows from the language of Article 29 which sets out the relevant rules for the interpretation of the Convention. Subparagraph (b) of Article 29 indicates that no provision of the Convention may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said States is a party.”

 

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

 

 

The Conventionality Control aspect is the clearest expression of integration between the systems of protection. It has its basis in compliance with obligations to respect the notion of good faith and in particular in obligations to respect and guarantee human rights. The Inter-American Court has assessed that in the vast majority of cases that have come to its knowledge, shortcomings related to judicial protection. Consequently, a more solid element whose basis remains the same regulatory basis of the obligation to guarantee human rights should be developed.¹⁹

 

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

 

“[...] The judges and organs related to the administration of justice at all levels are obliged to monitor ex officio that domestic law is in accordance with the human rights treaties to which the State is a Party, evidently within the framework of their respective competences and the corresponding procedural regulations. In this task, the judges and organs related to the administration of justice, such as the Public Prosecution Service, must take into account not only the American Convention and other inter-American instruments, but also the interpretation of them made by the Inter-American Court.”²⁰

 

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

 

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

 

* Claudio Nash ROJIS, Professor of International Human Rights Law and Fundamental Rights, University of Chile Law School.
 

1. Nash, C. La concepción de derechos fundamentales en Latinoamérica. Editorial Fontamara, Mexico, 2010, chapter I (Sistemas normativos humanitarios).
 

2. Ibid. ,chap. II.
 

3. Ibid., at  55-72.
 

4. Article 68 ‘1. The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.’
 

5. Article 62 ‘1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.’
 

6. Article 62.
 

7. Article 66 of the Rules of Procedure of the Inter-American Commission of Human Rights.

 

10. Nash, C., Las reparaciones ante la Corte Interamericana de Derechos Humanos (1998-2007). Center of Human Rights, University of Chile, Santiago, 2009.
 

11. IACHR, AtalaRiffo and Daughters v. Chile case. Merits, Reparations and Costs, Judgment of 24 February 2012. Series C No. 239.
 

12. Inter-American Court of Human Rights / Velásquez Rodríguez v. Honduras/ 29 July 1988. .
 

13. Inter-American Court of Human Rights /Casta?edaGutman v. Mexico/ 6 August 2008. .
 

14. Matter of B. with regard to El Salvador. Resolution of the Inter-American Court of Human Rights of 29 May 2013, considering 5.
 

15. Matter of B. with regard to El Salvador. Resolution of the Inter-American Court of Human Rights of 29 May 2013, considering 4.
 

16. IACHR, Gelman v. Uruguay case. Monitoring compliance with judgment.Order of the Inter-American Court of Human Rights, 20 March 2013, considering 71.
 

17. Article 29. Restrictions Regarding Interpretation

‘No provision of this Convention shall be interpreted as:

a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

b. 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;

c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.’
 

18. Nash, C. Op. Cit., note 4, at 503-541.
 

19, Nash, C. Op. Cit., note 4,at 189-215.
 

20. IACHR Rio Negro Massacre v. Guatemala case. Preliminary Objection, Merits, Reparations and Costs. Judgment of 4 September 2012 Series C No. 250, para. 262.