in International Human Rights Tribunals

Shelton, Dinah

doi:10.1007/978-90-6704-894-1_15

Jura Novit Curia in International Human Rights Tribunals

Dinah Shelton^5,6

Chapter
First Online: 14 March 2013

3685 Accesses

Abstract

Human rights bodies have been created to monitor compliance by states parties with the rights and obligations contained in their respective treaties. Such bodies generally have similar mandates to review periodic state reports, undertake inquiries, issue general comments or recommendations, and hear (optionally) complaints or communications by those persons claiming their rights were violated. This essay examines the juridical value of the resulting pronouncements made by the different human rights bodies. It examines the development over time of the practice of treaty bodies and pronouncements they themselves have made about the juridical value of their decisions, comments, and views. The conclusion undertakes an assessment of the notion of authoritativeness and the degree of deference owed by states to the pronouncements of human rights treaty bodies. The study indicates that the ambivalent, often reticent attitude of governments towards human rights law—revealed in the deliberately limited powers of treaty bodies—has failed to halt the creative development of procedures that allow for normative evolution and genuine scrutiny of compliance by states parties. The expansion of juridical status for the determinations of human rights bodies reflects the fact that effective promotion and protection of internationally guaranteed human rights requires a degree of international accountability, even if the role of international bodies is subsidiary to national implementation.

Keywords

Dispute Settlement
Domestic Court
Grand Chamber
Treaty Body
Alleged Violation

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

This article represents the author’s personal views and not those of the Inter-American Commission or any other part of the Organization of American States.

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Notes

1.
The principle was expressed originally in a longer maxim: “non dubitandum est iudici, si quid a litigatoribus vel ad his qui negotiis adsistunt minus fuerit dictum, id supplere et proferre, quod sciat legibus et iuri publio conveniure” Codex Iustinianus in II Corpus Iuris Civilis (P. Krueger, ed. Bertolini 1963) 102.
2.
Damaška 1986, p. 116. Fox calls the adage a “presumption” that the court knows the law (Fox 1992). He does not mention another general principle of law: that all subjects of a legal system are presumed to know the law and ignorance of the law is no defense to its violation. How this general knowledge differs from the presumed knowledge of the judge is unexamined.
3.
Geeroms 2004. See also Miller 2002, p. 1256 (describing the practices of appellate courts in the United States when they find a point of law has been wrongly stated or omitted by the parties, practices that range from ignoring the issue or deeming it waived to noting the issue and remanding the case for consideration of it, requesting supplemental briefing or deciding the issue without briefing).
4.
The Black’s Law Dictionary 1990, p. 852 translates the principle as “the court knows the law; the court recognizes rights.” Brooker 2005, p. 9, notes that the second part of this definition may support the creation of equitable remedies: “The translation the ‘court recognises rights’ and its association with the maxim ‘no wrong without a remedy’, (…) invalidates a defence based on the absence of law by legitimising a decision based on a judge-created rule imposed ex post facto to remedy a wrong, notwithstanding no law was breached. The factual wrong alleged in this application of jura novit curia is found by a court nonetheless as sufficiently egregious to justify ‘recognising’ protection from the wrong as a ‘right’ leading to the provision of a remedy in equity”.
5.
Mann 1977, p. 369. Mann was critical of a decision of the European Commission of Human Rights (ECmHR) which stated: “it is a generally recognised principle of law that it is for the court to know the law (jura novit curia) (…). [T]he practice of the German courts whereby the parties are not necessarily invited to make oral submissions on all points of law which may appear significant to the courts does not constitute an infringement of 'fair hearing' within the meaning of [Article 6 ECHR]” (ECmHR: X. & Co. (England) Ltd v. the Federal Republic of Germany, 3147/67, Decision (07 February 1968)).
6.
ECJ: Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten, C-430/93 and C-431/93, Opinion of Adv. Gen. Jacobs (15 June 1995), paras 34–35.
7.
This is the case, notably, with the International Court of Justice (ICJ) and arbitral tribunals. Cf. Shelton 2009.
8.
ICJ: Fisheries Jurisdiction (United Kingdom v. Iceland), Pleadings, Vol. IV, p. 32.
9.
The function of the ICJ, as the principal judicial organ of the UN, “is to decide in accordance with international law such disputes as are submitted to it” (Article 38.1 of the Statute of the International Court of Justice). The panels and Appellate Body of the World Trade Organization are also dispute-settlement bodies, although the states parties declined to establish a court to decide trade disputes (Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter DSU), Agreement Establishing the World Trade Organization (Marrakesh, 15 April 1994), Annex 2, entered into force on 1st January 1995). The functions of the International Tribunal for the Law of the Sea include dispute settlement, but also include compliance monitoring (United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982; hereinafter UNCLOS), entered into force on 16 November 1994, Annex VI).
10.
ICJ: Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment (25 July 1974), paras 17–18.
11.
ICJ: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (27 June 1986), para 29.
12.
According to the Court, “for the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (…) so that the absence of one party has less impact”, ibidem The Inter-American Court used much the same language when Peru failed to appear in a case before it, IACtHR: Constitutional Court v. Peru, Judgment (31 January 2001), para 58.
13.
The Paquete Habana, 175 U. S. 677, 708 (1900)(“This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.”).
14.
Of course, in some instances, the ICJ’s jurisdiction is also limited to a specific treaty, based on a compromissory clause in that agreement, e.g., the International Convention on the Elimination of All Forms of Racial Discrimination (New York, 21 December 1965), entered into force on 4 January 1969, Article 22.
15.
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; hereinafter ECHR), Entered into force on 3 September 1953, as amended by Protocol No. 11 (Strasbourg, 11 May 1994), entered into force on 1 November 1998 and Protocol No. 14 (Strasbourg, 13 May 2004), entered into force on 1 June 2010.
16.
American Convention on Human Rights (San José, 22 November 1969; hereinafter ACHR or American Convention), entered into force on 18 July 1978, Article 33.
17.
Entered into force on 23 March 1976.
18.
Entered into force on 23 March 1976.
19.
See e.g., HRC: BdB et al. v. The Netherlands, 273/1989, Decision (30 March 1989), UN Doc. Supp. No. 40 (A/44/40), p. 286.
20.
In the Omniayak Case, for example, the applicant invoked the right of self-determination (ICCPR, Article 1), in respect to the rights of his indigenous community in Canada. The Committee determined that its jurisdiction did not extend to alleged violations of Article 1, because it does guarantee individual rights. Rather than declare the communication inadmissible, the Committee considered it as falling within the provision concerning minority rights, ICCPR Article 27. See: HRC: Omniayak, Chief of the Lubicon Lake Band v. Canada, 267/1984, Views (26 March 1990), UN Doc. CCPR/C/38/D/167/1984 (10 May 1990), p. 1.
21.
ECtHR: Scoppola v. Italy (no. 2) [GC], 10249/03, Judgment (17 September 2009), para 54. See also ECtHR: Powell and Rayner v. United Kingdom, 9310/81, Judgment (21 February 1990), para 29 (“The Court is the master of the characterisation to be given in law to the facts submitted to its examination.”).
22.
ECtHR: Hermi v. Italy [GC], 18114/02, Judgment (18 October 2006), Dissenting Opinion of Judge Zupančič (concerning the role of judges and prosecutors in criminal cases); Akdivar and others v. Turkey, 21893/93, Judgment (16 September 1996), Dissenting Opinion of Judge Gölcüklü (referring to jura novit curia in reference to exhaustion of local remedies); McFarlane v. Ireland [GC], 31333/06, Judgment (10 September 2010), Dissenting Opinion of Judge López Guerra (on exhaustion of local remedies).
23.
See, ECtHR: Pentiacova and 48 others v. Moldova, 14462/03, Decision (4 January 2005); Nelissen v. The Netherlands, 6051/07, Decision (5 April 2011).
24.
ECtHR: Eskelinen and others v. Finland, 43803/98, Judgment (8 August 2006); Tarnawczyk v. Poland, 27480/02, Judgment (7 December 2010); Turek v. Slovakia, 57986/00, Judgment (14 December 2004); Juha Nuutinen v. Finland, 45830/99, Judgment (24 April 2007); Marcic and 16 others v. Serbia, 17556/05, Judgment (30 October 2007); Hellborg v. Sweden, 47473/99, Decision (30 November 2004); Jusufoski v. “the Former Yugoslav Republic of Macedonia”, 32715/04, Decision (31 March 2009); AGRO-B SPOL. S R.O. v. The Czech Republic, 740/05, Decision (1 February 2011). See also, ECtHR: Benham v. the United Kingdom, 19380/92, Judgment (10 June 1996), para 41; Gusinskiy v. Russia, 70276/01, Judgment (19 May 2004), para 66.
25.
ECtHR: Van Oosterwijck v. Belgium, 7654/76, Judgment (6 November 1980), para 34; Cardot v. France, 11069/84, Judgment (19 March 1991).
26.
ECmHR: W. v. Austria, 10757/84, Decision (13 July 1988); X. v. Federal Republic of Germany, 9228/80, Decision (16 December 1982). ECtHR: Van Oosterwijck, supra n. 25, para 39 (the applicant argued that the Belgian courts were bound by the principle jura novit curia to apply the ECHR even though he had not requested them to do. “The Court is not persuaded by this argument. The fact that the Belgian courts might have been able, or even obliged, to examine the case of their own motion under the [ECHR] cannot be regarded as having dispensed the applicant from pleading before them the [ECHR] or arguments to the same or like effect”). See also ECtHR: Lelas v. Croatia, 55555/08, Judgment (20 May 2010).
27.
See ECtHR: Perna v. Italy [GC], 48898/99 Judgment (6 May 2003), para 23; Azinas v. Cyprus [GC], 56679/00, Judgment (28 April 2004), para 32. The case ECtHR: Contrada v. Italy, 27143/95, Judgment (24 August 1998), provides an example of the refusal to apply jura novit curia to bring in a new complaint. In his memorial to the Court and at the hearing, the applicant challenged, as he had previously done before the Commission, the lawfulness of his arrest and detention, saying that they had been in breach of Article 5.1.c ECHR. Relying for the first time on Article 3, he also submitted that the conditions of his detention (solitary confinement in military prisons) amounted to ill-treatment in breach of that provision. The Court observed, firstly, that on 14 January 1997 the Commission declared the complaint under Article 5.1.(c) inadmissible. It further noted that although Mr Contrada complained from the outset that he had been detained for an unreasonable period (Article 5.3 ECHR), the complaint under Article 3 ECHR concerns the actual conditions of detention, not its length. The Court held it had no jurisdiction ratione materiae to hear the Article 3 claim.
28.
In addition to the cases cited in the text, see ECtHR: Slawomir Musial v. Poland, 28300/06, Judgment (20 January 2009); Mocny v. Poland, 47672/09, Decision (30 November 2010); Dolenec v. Croatia, 25282/06, Judgment (26 November 2009).
29.
ECtHR: Guerra and others v. Italy, 14967/89, Judgment (19 February 1998), para 44; see also Philis v. Greece (no. 1), 12750/87-13780/88-14003/88, Judgment (27 August 1991), para 56; Berktay v. Turkey, 22493/93, Judgment (1 March 2001), para 167; Eugenia Lazăr v. Romania, 32146/05, Judgment (16 February 2010), para 60.
30.
ECtHR: Guerra, supra n. 29, para 43 (citations omitted).
31.
See also ECtHR: Castravet v. Moldova, 23393/05, Judgment (13 March 2007), para 23; Marchenko v. Ukraine, 4063/04, Judgment (19 February 2009), para 34; Berhani v. Albania, 847/05, Judgment (27 May 2010), para 46; Anusca v. Moldova, 24034/07, Judgment (18 May 2010), para 26. In the case of Gatt v. Malta, 28221/08, Judgment (27 July 2010), the Court decided to examine the issue raised by the applicant not only under Article 3 as alleged, but also under Article 5 ECHR and Article 1 of Protocol no. 4 to the ECHR.
32.
Scoppola (no. 2), supra n. 21, para 55. The applicant had originally invoked Article 6, but no ruling was made on its admissibility.
33.
Similarly, once the case of Serife Yigit v. Turkey was submitted to the Grand Chamber, it invited the parties, in their observations and pleadings before it, to address the issue of compliance with Article 14 ECHR taken in conjunction with Article 1 of Protocol no. 1 to the ECHR. See also ECtHR: Göç v. Turkey [GC], 36590/97, Judgment (11 July 2002), para 36.
34.
In ECtHR: Akdeniz v. Turkey, 25165/94, Judgment (31 May 2005), the Court observed that the applicant did not initially invoke Article 2 ECHR in her application form, but later included it in observations to the Court. The Court reiterated that since it is master of the characterization to be given in law to the facts of the case, it is not bound by the characterization given by an applicant, a government, or the Commission and by virtue of the jura novit curia principle it could and had considered of its own motion complaints under articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. Within the compass of the admissibility decision, the Court may deal with any issue of fact or law that arises during the proceedings.
35.
ECtHR: Timurtaş v. Turkey, 23531/94, Judgment (13 June 2000). See also ECtHR: Bilgin v Turkey, 23819/94, Judgment (16 November 2000); Baysayeva v. Russia, 74237/01, Judgment (5 April 2007).
36.
See also ECtHR: Pastor and Ticlete v. Romania, 30911/06-40967/06, Judgment (19 April 2011); and Anusca, supra n. 31, similarly adding Article 2.
37.
ECtHR: Celikbilek v. Turkey, 27693/95, Judgment (31 May 2005).
38.
See, ECtHR, Brosset Triboulet and other v. France, 34078/02, Decision (29 April 2008), (adding Article 8);.
39.
Thus, if the European Court finds a right violated, such as freedom from inhuman or degrading treatment or freedom of expression, it rarely examines the issue of discrimination in addition to that of the specific violation. The court seems to do so only when the applicant introduces sufficient evidence that the violation was specifically motivated by discrimination. Compare, e.g. ECtHR: Arslan v. Turkey [GC], 23462/94, Judgment (8 July 1999); and Nachova and Others v. Bulgaria [GC], 43577/98-43579/98, Judgment (6 July 2005).
40.
See, e.g. ECtHR: Silver v. United Kingdom, 5947/72-6205/73-7052/75-7061/75-7107/75-7113/75-7136/75, Judgment (25 March 1983).
41.
As Booker notes, in France, recourse to jura novit curia has been justified by le principe d’égalité devant la justice which is meant to guarantee that all litigants receive equal treatment from the courts. Le principe d’égalité devant la justice may impose a duty on the court duty to intervene with its own point of law because it is the courts’ duty to decide according to the ‘applicable’ law in all cases, regardless of the legal argument on which parties base their case. This sense of jura novit curia relates to the court’s duty, where necessary, to intervene to correct a party’s erroneous or inadequate legal argument because otherwise some parties would be denied the benefit of the law that is the right of all French citizens, see Brooker 2005.
42.
References to the Commission in this section should be understood to encompass the Secretariat, whose lawyers process petitions and present them to the Commission.
43.
IACtHR: Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, Judgment (21 June 2002), paras 107, 187.
44.
Neuman 2008, p. 101, citing IACtHR: Godínez-Cruz v. Honduras, Judgment (20 January 1989), para 172 and “Ituango Massacres” v. Colombia, Judgment (1st July 2006), para 191. See also IACtHR: Ricardo Canese v. Paraguay, Judgment (31 August 2004), paras 128, 131, 134.
45.
The Commission did not use jura novit curia at the merits stage in either year.
46.
For members of the Organization of American States (OAS) not party to the ACHR, the Commission applies the rights contained in the American Declaration of the Rights and Duties of Man (Bogota, 2 May 1948).
47.
Unlike United Nations practice, the OAS does not create a separate treaty body for each human rights agreement it adopts; instead the jurisdiction of the Commission expands with each human rights treaty when it enters into force. For these texts, see the Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4, Rev. 13 (30 June 2010).
48.
IACmHR: Jesús Tranquilino Vélez Loor v. Panama, 92-04, Report 95/06 (23 October 2006). The petition alleged violation by the Panamanian State of Articles 5, 7, 8, 10, 21, and 25 ACHR in conjunction with Article 1.1, and Articles 1, 2, 3, 7, 8, 9, 10, and 11 of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNGA res. 3452 (XXX), Annex (9 December 1975)). The Commission declared the case admissible under Articles 1.1, 2, 5, 8, 21, and 25 ACHR, but substituted for the UN Torture Declaration Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture (Cartagena de Indias, 12 September 1985; hereinafter Inter-American Torture Convention), entered into force on 28 February 1987. See also IACmHR: Jorge, Jose and Dante Peirano Basso v. Uruguay, 1109-04, Report 35/06 (14 March 2006), in which petitioners invoked Articles 5.1, 5.2, 7.1, 7.3, 8.1, 9, 24, 25, and 29 ACHR in conjunction with Article 1.1 of the same Convention. The petitioners further alleged violations of Articles II, XVIII, XXV and XXVI of the American Declaration on the Rights and Duties of Man, and Articles 1, 2, 6, and 8 of the Inter-American Torture Convention; Articles 9, 14, and 26 ICCPR, and Article 26 of the Vienna Convention on the Law of Treaties (Vienna, 22 May 1969), entered into force on 27 January 1980, and the UN Standard Minimum Rules for the Treatment of Prisoners (Geneva, 30 August 1955), approved by ECOSOC ress 663 C(XXIV) (31 July 1957) and 2076 (LXII) (13 May 1977). The Commission admitted the case only on alleged violations of Articles 7, 8, 9, and 25 ACHR.
49.
Articles 46–47 ACHR set forth the admissibility requirements.
50.
Rules of Procedure of the Inter-American Commission on Human Rights, Approved by the Commission at its 137th regular period of sessions, held from 28 October to 13 November 2009.
51.
See, e.g. IACmHR: Carlos Alberto Valbuena and Luis Alfonso Hamburger Diazgranados v. Colombia, 668-05, Report 87/06 (21 October 2006); Nueva Venecia Massacre v. Colombia, 1306-05, Report 88/06 (21 October 2006): “The Commission considers that the facts the petitioner is reporting regarding the alleged violation of the right to life, the right to humane treatment, the right to a fair trial and the right to judicial guarantees could tend to establish violations of the rights protected under Articles 4, 5, 8.1 and 25 of the American Convention, in combination with Article 1.1 thereof.” See also IACmHR: María Emilia González, Paula Micaela González, and María Veronica Villar v. Argentina, 618-01, Report 15/06 (2 March 2006) and Israel Gerardo Paredes Costa v. Dominican Republic, 12.174, Report 48/06 (15 March 2006).
52.
This practice can sometimes reach the point of including nearly every provision of the ACHR. See: IACmHR: Residents of the Village of Chichupac and the Hamlet of Xeabaj, Municipality of Rabinal v. Guatemala, 1579-07, Report 144/10 (1st November 2010). In this case alleging army-perpetrated massacres, rape, failure to lend assistance, extrajudicial executions, torture, forced disappearance, illegal detentions, and/or forced labor, the Commission decided that it was not only competent to hear the claim filed by the petitioners for the alleged violations of Articles 4, 5, 6, 7, 8, 11.1, 12, 13, 16, 17, 21, 22, 24, and 25 ACHR in conjunction with Article 1.1 of that Convention and Article 1 of the Inter-American Convention on Forced Disappearance of Persons (Belém do Pará, 6 September 1994; hereinafter Inter-American Forced Disappearances Convention), entered into force on 28 March 1996, but that in application of the principle of jura novit curia, the petition was admissible for the alleged violation of Articles 3 and 23 in conjunction with Article 1.1 ACHR.
53.
IACmHR: Xavier Alejandro León Vega v. Ecuador, 278-02, Report 22/06 (2 March 2006) concerned conscientious objection to military service. The petitioner alleged that the ability to refuse military service is a right guaranteed by Articles 12 (Freedom of conscience and religion), 13 (Freedom of thought and expression), and 22.2 (Freedom of movement and residence) ACHR and of Article 6 (Right to Work), and 13.1.2.3 (Right to Education) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, 17 November 1988; hereinafter Protocol of San Salvador), entered into force on 16 November 1999. The Commission considered that the allegations could constitute violations to the petitioner’s rights as enshrined in Articles 1.1, 2, 11, 12.1, and 22.2 ACHR and to Article 13.1 Protocol of San Salvador.
54.
For petitions in which Article 8 was added, see, e.g. IACmHR: Neusa Dos Santos Nascimento and Gisele Ana Ferreira v. Brazil, 1068-03, Report 84/06 (21 October 2006); Union Of Ministry Of Education Workers (Atramec) v. El Salvador, 71-03, Report 23/06 (2 March 2006); Jacobo Arbenz Guzman v. Guatemala, 569–99, Report 27/06 (14 March 2006).
55.
Article 25 ACHR, entitled “judicial protection”, expresses the right to a remedy. For cases adding Article 25 ACHR, often in connection with Article 8 ACHR, see, e.g.: IACmHR: Alicia Barbani Duarte, Maria Del Huerto Breccia, et al. (Depositors Of The Banco De Montevideo) v. Uruguay, 997-03, Report 123/06 (27 October 2006) (adding Articles 8 and 25 ACHR in case concerning bank fraud); Jesús Mohamad Capote, Andrés Trujillo et al. v. Venezuela, 4348-02, Report 96/06 (21 October 2006) (“Although the petitioners did not make any express allegations to that effect, in application of the principle of jura novit curia the Commission finds that the facts recounted in connection with the alleged delay and lack of due diligence may tend to establish a violation of the rights to a fair trial and to judicial protection, recognized in Articles 8, 25 and 1.1 of the [American] Convention, to the detriment of the alleged victims and their next of kin.”); Victoria Jiménez Morgan and Sergio Jiménez v. Costa Rica, 469-05, Report 178/10 (24 November 2010); Fredy Marcelo Núñez Naranjo et al. v. Ecuador, 1011-03, Report 2/10 (15 March 2010); Oscar Muelle Flores v. Peru, 147-98, Report 106/10 (16 July 2010).
56.
See, e.g., IACmHR: Thalita Carvalho De Mello and others v. Brazil, 1454-06, Report 127/10 (23 October 2010) (adding by jura novit curia possible violations of Articles 5.1 and 8 ACHR with respect to the family members of the alleged victims); Estadero “El Aracatazzo” Massacre v. Colombia, 1325-05, Report 47/10 (18 March 2010); Oscar Orlando Bueno Bonnet et al. Colombia, 11.990, Report 124/10 (23 October 2010).
57.
Violation of Articles 8 and 25 ACHR, as well as other rights, were alleged in 33 of 36 matters in 2006. In none of these cases did the Inter-American Commission apply jura novit curia. See e.g., IACmHR: Eugenio Sandoval v. Argentina, 619-01, Report 16/06 (2 March 2006); Persons Deprived of Freedom at Urso Branco Prison, Rondônia v. Brazil, 394-02, Report 81/06 (21 October 2006); Manoel Luiz Da Silva v. Brazil, 641-03, Report 83/06 (21 October 2006); Omar Zúñiga Vásquez and Amira Isabel Vásquez De Zúñiga v. Colombia, 458-04, Report 20/06 (2 March 2006); Members of José Alvéar Restrepo Lawyers’ Collective v. Colombia, 12.380, Report 55/06 (20 July 2006); Workers Belonging to the “Association Of Fertilizer Workers”(Fertica) Union v. Costa Rica, 2893-02, Report 21/06 (2 March 2006); El Mozote Massacre v. El Salvador, 10.720, Report 24/06 (2 March 2006); Erwin Haroldo Ochoa López and Julio Armando Vásquez Ramírez v. Guatemala, 1083-05, Report 58/06 (20 July 2006); Jimmy Charles v. Haiti, 81-06, Report 65/06 (20 July 2006); Garífuna Community of “Triunfo De La Cruz” and its Members v. Honduras, 906-03, Report 29/06 (14 March 2006); Angel Pacheco León v. Honduras, 848-04, Report 118/06 (26 October 2006); Silvia Arce et al. v. Mexico, 1176-03, Report 31/06 (14 March 2006); Rita Irene Wald Jaramillo et al. v. Panama, 875-03, Report 34/06 (14 March 2006); Francisco Usón Ramírez v. Venezuela, 577-05, Report 36/06 (15 March 2006); Sebastián Echaniz Alcorta and Juan Víctor Galarza Mendiola v. Venezuela, 562-03, Report 37/06 (15 March 2006); Mercedes Chocron Chocron v. Venezuela, 549-05, Report 38/06 (15 March 2006); Carlos Rafael Alfonzo Martinez v. Venezuela, 73-03, Report 39/06 (15 March 2006); María Cristina Reverón Trujillo v. Venezuela, 406-05, Report 60/06 (20 July 2006).
58.
With respect to disappearances, the Inter-American Commission has followed a general practice of finding violations of Articles 3, 4, 5, 7, 8, and 25, in relation to Articles 1.1 and 2 ACHR; as well as Articles I and III Inter-American Forced Disappearances Convention. See, e.g. IACmHR: Jeremías Osorio Rivera et al. v. Peru, 11.845, Report 76/10 (12 July 2010).
59.
See, e.g. IACmHR: Gerson Jairzinho González Arroyo v. Colombia, 11.144, Report 123/10 (23 October 2010); César Gustavo Garzón Guzmán v. Ecuador, 11.587, Report 70/10 (12 July 2010) (adding Articles 3, 5, and 7 as well as Article 1 Inter-American Forced Disappearances Convention); Luis Eduardo Guachalá Chimbó v. Ecuador, 247-07, Report 141/10 (1st November 2010); Patricia Emilie Cuellar Sandoval et al. v. El Salvador, 1138-04, Report 107/10 (20 August 2010); Jesús Angel Gutiérrrez Olvera v. Mexico, 497-03, Report 147/10 (1st November 2010).
60.
E.g. “In accordance with the principle of iura novit curia, the [Inter-American Commission] also rules these petitions admissible with respect to possible violations of Articles 3 (for the allegedly disappeared victims), 7 (for all alleged victims), 19 (for the alleged victims who were children at the time of the facts) and 24 (for all alleged victims) of the American Convention, to the detriment of the respective alleged victims; Articles 5.1 and 8 of the American Convention, to the detriment of the family members of the alleged victims and the surviving alleged victim. (…) Moreover, also by virtue of the principle of iura novit curia, the Inter-American Commission declares these petitions admissible with regard to Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture”, IACmHR: Roberto Carlos Pereira De Souza et al. v. Brazil, 1448/1452/1458-06 and 65-07, Report 126/10 (23 October 2010), para 3.
61.
In the seminal judgment Velásquez-Rodríguez v. Honduras the Inter-American Court signaled a broad approach to the phenomenon of forced disappearances, stating: “The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion (…). The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee.” (IACtHR: Velásquez-Rodríguez v. Honduras, Judgment (29 July 1988), paras 150–155.
62.
Sometimes only these articles are added. See, e.g. IACmHR: Omar Francisco Canales Ciliezar v. Honduras, 691-04, Report 71/10 (12 July 2010) (admitting the case on Articles 8 and 25 ACHR, adding Articles 1.1 and 2 ACHR pursuant to jura novit curia).
63.
IACmHR: Members of the Indigenous Community of Annas et al. v. Brazil, 62-02, Report 80/06 (21 October 2006).
64.
IACmHR: Nasry Javier Ictech Guifarro v. Honduras, 2570-02, Report 30/06 (14 March 2006); Paloma Angélica Escobar Ledezma et al. v. Mexico, 1175-03, Report 32/06 (14 March 2006), para 39 (“under the principle of jura novit curia, the Inter-American Commission will analyze claims addressing Article 2 of the American Convention.”).
65.
IACmHR: Alejandro Fiallos Navarro v. Nicaragua, 799-04, Report 59/06 (20 July 2006), para 51 (“The Commission, invoking the principle of jura novit curia, will analyze the possible violations in conjunction with the general obligations set out in Articles 1 and 2 of the American Convention.”).
66.
Velásquez-Rodríguez, supra n. 61, para 163. See also Godínez-Cruz, supra n. 44, para 172. The insertion of the reference to jura novit curia was proposed by a single judge, Hector Gros-Espiell, but accepted by the other members of the Court.
67.
Unlike the UN system, the Inter-American continues to have a single monitoring commission for all of its treaties, rather than creating a separate treaty body for each major agreement.
68.
IACtHR: Heliodoro-Portugal v. Panama, Judgment (12 August 2008), paras 105–113.
69.
See IACmHR: Juan Carlos Jaguaco Asimbaya v. Ecuador, 245-05, Report 64/10 (12 July 2010), adding Articles 1, 6, and 8 of the Inter-American Torture Convention; Irineo Martínez Torres and Candelario Martínez Damián v. Mexico, 161-01, Report 72/10 (12 July 2010), adding Article 24 ACHR and Articles 1, 6, and 8 of the Inter-American Torture Convention.
70.
See IACmHR: Linda Loaiza López Soto and next of kin v. Venezuela, 1462-07, Report 154/10 (1st November 2010). In this case, the Commission also added American Convention Article 11 without mentioning jura novit curia: “Within this framework, the petitioners also allege that public officials from the justice system discredited and blamed the victim for the acts of sexual violence during the challenged investigation and criminal proceeding, violating her honor and dignity; claims that the Commission considers pertinent to analyze under Article 11.1 of the American Convention.”.
71.
Entered into force on 5 March 1995.
72.
See IACmHR: Natividad de Jesús Ramírez, et al. v. El Salvador, 1137-04, Report 143/10 (1st November 2010), adding the alleged violation of the rights enshrined in Articles 2, 3, 17, and 19 ACHR and Articles 1 and 6 of the Torture Convention.
73.
ECmHR: José Adrián Rochac Hernández v El Salvador, 731-03, Report 90/06 (21 October 2006).
74.
Ibidem, para 41.
75.
ECmHR: María Isabel Véliz Franco v. Guatemala, 95-04, Report 92/06 (21 October 2006).
76.
Ibidem, para 52.
77.
IACtHR: Blake v. Guatemala, Judgment (24 January 1998), para 112; Acosta-Calderón v. Ecuador, Judgment (24 June 2005) (adding violations of Articles 7.6 and 25 ACHR).
78.
IACtHR: Castillo-Petruzzi et al. v. Peru, Judgment (4 September 1998), para 90. The eighth objection interposed by the State concerned “ambiguity in the manner of submitting the application” due to differences in the application and the final brief. The Court rejected the State’s objection, citing jura novit curia. See also IACtHR: Castillo-Petruzzi et al. v. Peru, Judgment (30 May 1999), para 116 (noting that the Commission’s first reference to a violation of Article 9 was in its final pleading but finding that this did not preclude the Court from examining that allegation during the proceedings on the merits, in accordance with the principle of jura novit curia); Durand and Ugarte v. Peru, Judgment (16 August 2000), para 38 (“The Court considers that the fact that the violation of Article 5(2) of the Convention was not discussed in the application brief of the Commission does not prevent if from being examined by the Tribunal, according to the general principle of jura novit curia right, used repeatedly by the international jurisdiction in the sense that a judge is entitled and even has the obligation to implement the corresponding legal dispositions in a proceeding, even when the parties are not explicitly invoked.” The Court found no violation of Article 5.2 in the case.).
79.
IACtHR: “Five Pensioners” v. Peru, Judgment (28 February 2003). See also Gómez-Paquiyauri Brothers v. Peru, Judgment (8 July 2004) (Commission objection to introduction of claimed violations of Articles 11 and 17 ACHR deeming the claims to “transcend the object of the instant proceeding.” para 174). Paraguay raised similar objections in IACtHR: “Juvenile Reeducation Institut” v. Paraguay, Judgment (2 September 2004), para 114. The Court repeated that it can consider any right at any stage, but added “[i]t is understood that the parties will always be given an opportunity to present whatever arguments and evidence they deem relevant to support their position vis-à-vis all the legal provisions under examination.” (ibidem, para 126). See also IACtHR: Serrano-Cruz Sisters v. El Salvador, Judgment (23 November 2004), para 124 (rejecting the objection of the State that “the plea in the application is contrary to the “body” of the application. In this regard, the State alleged that:…f) The principle of jura novit curiae is not limitless, because “judges and courts cannot […] change the subjective claims of petitioners.”); Pueblo Bello Massacre v. Colombia, Judgment (25 November 2006) (state objection to a lack of procedural equality).
80.
See, e.g. IACtHR: Miguel Castro–Castro Prison v. Peru, Judgment (25 November 2006), para 163.
81.
See, e.g. IACtHR: Mapiripán Massacre v. Colombia, Judgment (7 March 2005), para 57–60; See, e.g., IACtHR: Perozo et al. v. Venezuela, Judgment (28 January 2009), paras 28–34 (entitled “On the Alleged Inadmissibility of the new Arguments and Allegations contained in the Autonomous Brief signed by the Alleged Victims”); Usón Ramírez v. Venezuela, Judgment (20 November 2009).
82.
“Five Pensioners”, supra n. 79, paras 153–154.
83.
Ibidem, para 155.
84.
IACtHR: “Five Pensioners”, supra n. 79, Concurring Opinion of Judge Cancado-Trindade, para 21 (“The criterion adopted by the Court in the present Judgment in the case of the Five Pensioners versus Peru correctly considers that one cannot hinder the right of the petitioners of access to justice at international level, which finds expression in their faculty to indicate the rights which they deem violated. The respect for the exercise of that right is required from the States Parties to the Convention, at the level of their respective domestic legal orders, and it would not make any sense if it were denied in the international procedure under the Convention itself. The new criterion of the Court clearly confirms the understanding whereby the process is not and end in itself, but rather a means of realization of Law, and, ultimately, of justice.”).
85.
Ibidem, para 13.
86.
IACtHR: Moiwana Community v. Suriname, Judgment (15 June 2005), para 91.
87.
In IACtHR: Myrna Mack-Chang v. Guatemala, Judgment (25 November 2003), paras 223–225 the representatives of the next of kin of the victim asked the Court to find a violation of Article 5 ACHR to the detriment of the next of kin. The Inter-American Commission did not allege such a violation. See also, IACtHR: Ximenes-Lopes v. Brazil, Judgment (30 November 2005), para 156 (pointing out that the next of kin of the victims of violations of human rights may be victims themselves and adding additional victims to the proceeding).
88.
IACtHR: Moiwana Community, supra n. 86, para 107.
89.
The Court and Commission may both insist that the Court does not act as a review body for decisions of the Commission. Concededly, the Commission is not a judicial body like the Court and the system is not akin to that of the European Court of First Instance and the European Court of Justice. In practice, however, petitioners and states both view the Commission as acting as a quasi-judicial body in deciding cases, making findings of fact, and conclusions of law on the matters before it. The Court is, in reality, reviewing the decisions of the Commission presented to it in the Article 50 report prepared for each case.
90.
IACtHR: Maritza Urrutia v. Guatemala, Judgment (27 November 2003), para 140 (adding Article 19, rights of the child, on behalf of the son and nephew of the victim based on a request by the representatives of the victims in their brief with final arguments. The Court called this allegation time barred, but then decided to examine, based on the jura novit curia principle.) The Court took the same approach in the cases Girls Yean and Bosico v. Dominican Republic, Judgment (23 November 2006) and Ximenes-Lopes, supra n. 87, para 155.
91.
IACtHR: García-Asto and Ramírez-Rojas v. Peru, Judgment (25 November 2005). In written arguments, the Commission pointed out that the victim’s representatives referred for the first time in the proceedings before the Court to a new issue: the “bodily and psychological harassment and coercion” inflicted on the petitioners (ibidem, para 68). The representatives responded that “the particulars detailed by the [alleged victims] in the brief of requests, arguments, and evidence, refer[red] to the facts mentioned in a general way in the application filed by the Commission” (ibidem, para 71). The Court recalled its own ability to apply the jura novit curia principle but stressed that, with regard to rights claimed for the first time by the representatives of the alleged victims and/or their next of kin, the legal arguments must be based upon the facts set out in the application.
92.
In fact in the Five Pensioners Case, petitioners had raised an alleged violation of Article 25 in the original petition, but the Commission did not determine the existence of the alleged violation. Thus, the Commission agreed that the Court could examine the matter (“Five Pensioners”, supra n. 79, para 102).
93.
Moiwana Community, supra n. 86, para 60. (“the Commission’s assessment with respect to alleged violations of the American Convention is not binding upon the Court.”).
94.
In IACtHR: Sawhoyamaxa Indigenous Community v. Paraguay, Judgment (29 March 2006), the Court made use of jura novit curia to announce a new doctrine on the right to juridical personality (Article 3 of the Convention). This method of developing the jurisprudence is not entirely misplaced, since litigants will often focus on litigating established standards rather than arguing for a new principle. This approach was also followed in IACtHR: “Ituango Massacres”, supra n. 44 (expanding the interpretation of Article 11.2 on the right to a home). See also IACtHR: Kimel v. Argentina, Judgment (2 May 2008).
95.
Instances where common law judges have used jura novit curia in this manner have led to reversal and criticism by appellate courts. In Hadmore Productions v. Hamilton [1983] A.C. 191, the House of Lords overturned Lord Denning’s judgement in the Court of Appeal, [(1981) 2 All E.R. 724] because he had researched and used in the case a passage from a source which, at the time, both courts and parties were not allowed to use. Lord Diplock described this as a breach, “of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him this is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is.” Id. at 233.
96.
Consequently, a court judgment should normally stay within the bounds established by the pleadings and arguments of the parties reflected in the adage nea eat judex ultra et extra petita partium. Damaška 1986, p. 160, n. 22. Roland and Boyer 1999, p. 521; Cornu 2003, p. 308.

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Manatt/Ahn Professor of Law, The George Washington University Law School, Washington, DC, USA
Dinah Shelton
Member and President (2010), Inter-American Commission on Human Rights, Washington, DC, USA
Dinah Shelton

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, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Nerina Boschiero
Bicocca University, Dipartimento giuridico, University of Milan, Piazza dell’Ateneo Nuovo 1, Milan, 20126, Italy
Tullio Scovazzi
, Dipartimento di Diritto,, University of Parma, Via Università 12, Parma, 43121, Italy
Cesare Pitea
, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Chiara Ragni

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Shelton, D. (2013). Jura Novit Curia in International Human Rights Tribunals. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_15

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