Abstract
This chapter on courts of regional economic communities in Latin America focuses mainly on MERCOSUR since other regional arrangements have not yet developed a fundamental rights jurisprudence of their own. In particular, it discusses a MERCOSUR arbitral award on the pulp mill dispute, in which Argentina invoked fundamental rights against market freedoms claimed by Uruguay and reference was made to fundamental rights cases decided by the Court of Justice of the European Union.
Parts of this paper build on an earlier text by the same authors. See Franca Filho et al. (2014).
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Notes
- 1.
For a more detailed analysis, see Kadelbach, The European Court of Justice and Human Rights Law, in this Volume.
- 2.
For a discussion of this limitation in the context of the European Union, see Lixinski (2014).
- 3.
Fernández Liesa (2009).
- 4.
ECJ, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, case 11/70, [1970] ECR 1125.
- 5.
The development of the protection of fundamental rights is the legacy of cases such as Handelsgesellschaft (ibid) and ECJ, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities, case 4/73, [1974] ECR 491.
- 6.
Cunha Rodriguez (2010).
- 7.
Alston and Weiler (1999).
- 8.
Pescatore (2010).
- 9.
ECJ, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse administratie der belastingen, case 26/62, [1963] ECR 1.
- 10.
ECJ, Flaminio Costa v E.N.E.L., case 6/64, [1964] ECR 1251.
- 11.
Since ECJ, Francovich and Bonifaci v Italian State, cases C-6/90 and C-9/90, [1991] ECR I-5357.
- 12.
See jurisprudence starting from ECJ, Unectef v Heylens and others, case 222/86, [1987] ECR 4097.
- 13.
Mangas Martin and Linan Nogueras (2010).
- 14.
In 1973, pursuant to the Treaty of Chaguaramas (ToC), the independent countries of the Caribbean Commonwealth and Montserrat established the Caribbean Community and Common Market (CARICOM).
- 15.
Olmos Giupponi and Díaz Barrado (2002).
- 16.
See CCJ, Johnson v CARICAD, AR2 of 2008, judgment of 07 Dec 2008.
- 17.
Art 25. La competencia de La Corte no se extiende a la materia de derechos humanos, la cual corresponde exclusivamente a la Corte Interamericana de Derechos Humanos Convenio de Estatuto de la CCJ—Corte Centroamericana, available at: http://portal.ccj.org.ni/Ccj2/LinkClick.aspx?fileticket=As1kDvgOEh4=&tabid=67. Accessed 11 July 2017.
- 18.
Olmos Giupponi (2003).
- 19.
The Southern Common Market (MERCOSUR) was created by the Treaty of Asunción, which Argentina, Brazil, Paraguay and Uruguay signed on 26 Mar 1991. The current configuration of MERCOSUR was established by the Ouro Preto Protocol, signed in Dec 1994 (the WTO was founded in 1994). On 12 Aug 2012, MERCOSUR had the first expansion, with the entry of Venezuela as a State Party. In the same year, the Protocol of Accession of Bolivia to Mercosur was signed, which, once ratified by the congresses of States Parties, will make the Andean countries’ sixth full member of the bloc.
- 20.
The Socio-laboral Declaration of MERCOSUR, for instance, signed on 10 Dec 1988, in Rio de Janeiro, by the Presidents of the States-parties, considers that the Member States are committed to the declarations, pacts, protocols and other treaties that integrate the legal heritage of mankind, including the Universal Declaration of Human Rights (1948), the International Covenants of Human Rights (1966), the American Declaration of the Rights and Duties of Man (1948), the Inter-American Charter of Social Rights (1948); the Organization of American States Charter (1948) and the American Convention on Economic, Social and Cultural Rights (1988). The CMC Decision no 40/04, in turn, created the High-Authorities Meeting on Human Rights on MERCOSUR. The Presidential Declaration of Porto Iguaçu, of 08 July 2004, signed by the Presidents of the States-parties of MERCOSUR, also affirms the high priority attributed to the protection, promotion and guarantee of human rights and fundamental freedoms for all people who live within the MERCOSUR.
- 21.
Lixinski (2010).
- 22.
See, for instance, Fuders (2008), where the economic content of human rights within MERCOSUR law is highlighted.
- 23.
Free translation by the authors.
- 24.
In Brazil, the normative was internalized by Decree 7.225 of 01 July 2010. A few other norms from MERCOSUR, although not dealing directly with human rights, touch on fundamental freedoms in a Common Market, with huge intersections with international human rights law.
- 25.
For a better understanding of the system of dispute settlements in MERCOSUR, see, for instance, Susani (2010).
- 26.
Decision I of 28 Apr 1999, relating to the Controversy between Argentina and Brazil on the statements No 37/97 e No 7/98 of the Department of International Trade Operations (DECEX) of the Secretary of International Trade (SECEX) of Brazil. Decision II, of 27 Sept 1999, relating to the petition by Argentina against Brazil, on the subsidies to the production and export of pork meat. Decision III, of 10 Mar 2003, between Brazil and Argentina on the application of safeguard measures on textile products (RES. 861/99) by the Ministry of Economic and Public Services and Works from Argentina. Decision IV, of 21 May 2001, relating to the controversy between Brazil and Argentina on the application of anti-dumping measures against the export of whole chickens from Brazil. Decision V, of 29 Sept 2001, relating to the controversy between Uruguay and Argentina on the restrictions to the Argentinean market of bicycles from Uruguay origin. Decision VI, of 09 Jan 2002, relating to the controversy between Uruguay and Brazil on the prohibition of import of remodeled pneumatics from Uruguay. Decision VII, of 19 Apr 2002 relating to the controversy between Argentina and Brazil on the obstacles of entrance to Argentinean phytosanitary products into the Brazilian market and the nonincorporation of GMC Resolutions nos 48/96, 87/96, 149/96, 156/96 e 71/98. Decision VIII, of 21 May 2002, relating to the controversy between Paraguay and Uruguay on the application of the Specific Internal Tax “IMESI” (Imposto Específico Interno) to the trade of cigarettes. Decision IX, of 04 Apr 2003, on the controversy between Argentina and Uruguay on the incompatibility of the stimulus to the industrialization of wool regime granted by Uruguay, established by Law no 13.695/68 and complementary decrees with the MERCOSUR’s normative on the application and utilization of inter-zone trade incentives. Decision X, of 05 Aug 2005 on the controversy between Uruguay and Brazil on discriminatory and restrictive measures of the tobacco and tobacco derived products trade.
- 27.
Decision XI, of 25 Oct 2005, relating to the controversy between Uruguay and Argentina on the prohibition of import of remodeled pneumatics. Decision XII, of 06 Sept 2006, relating to the controversy between Uruguay and Argentina on the omission of the Argentinean State in adopting the appropriated measures to prevent or cease the impediments on free movement in the access to the international bridges of General San Martin and General Artigas that link Argentina and Uruguay [hereinafter “Paper Mills Award of MERCOSUR”].
- 28.
Decision No 1/2005, of 20 Dec 2005, on the prohibition of import of remodeled pneumatics from Uruguay. Appeal of the Revision Presented by Uruguay against the Decision of the Ad Hoc Tribunal of 25 Oct 2005. Decision No 01/2006, relating to the prohibition of import of remodeled pneumatics from Uruguay. Declaratory Appeal presented by Argentina against the Decision of 20 Dec 2005. Decision No 2/2006, of 06 July 2006 relating to the on free movement in the access to the international bridges of General San Martin and General Artigas. Appeal on the Revision presented by Argentina against the decision of the Ad Hoc Tribunal of 21 June 2006. Decision No 1/2007, of 08 June 2007, relating to the controversy between Uruguay and Argentina on the prohibition of import of remodeled pneumatics from Uruguay, regarding the request of a decision on excesses on the application of compensatory measures. Decision No 1/2008, of 25 Apr 2008 relating to divergences in the enforcement of Decision No 1/05, brought by Uruguay (Art 30 Protocol of Olivos). Decision No 01/2012, of 21 July 2012, related to the suspension of rights of Paraguay in the bloc and the incorporation of Venezuela.
- 29.
1) advisory opinion No 01/2007: “Norte S.A. Imp. Exp. c/ Laboratórios Northia Sociedade Anônima, Comercial, Industrial, Financeira, Imobiliária e Agropecuária s/ Indenização de Danos e Prejuízos e Lucro Cessante,” petition forward by the Supreme Court of Paraguay. 2) advisory opinion No 01/2008: “Sucessão Carlos Schnek e outros com o Ministério de Economia e Finanças e outros. Cobrança de pesos,” petition forward by the Supreme Court of Uruguay. 3) advisory opinion No 01/2009: “Frigorífico Centenário S.A. c/ Ministério de Economia e Finanças e outros. Cobrança de pesos. IUE: 2-43923/2007,” petition forward by the Supreme Court of Uruguay.
- 30.
Parts of this section have also been published in Lixinski (2008).
- 31.
ICJ, Pulp Mills on the River Uruguay (Argentine v Uruguay), judgment of 20 Apr 2010, ICJ Reports 2010, 14.
- 32.
Paper Mills Award of MERCOSUR, supra n 27, para 21.
- 33.
Ibid, at para 27.
- 34.
Ibid, at para 31. In ECJ, Commission v France, case C-265/95, [1997] ECR I-6959, a series of protests in France caused by the discontent of farmers over competition with farmers from other Member States (mainly Spain, but also Belgium and Italy) gave rise to concern from the European Commission, which entered into conversations directly with France, and, seeing no result, decided to bring an action before the European Court of Justice (ECJ, today CJEU). In the Commission’s view, the events in France amounted to an impediment of the free circulation of goods, a fundamental economic freedom. The Commission attributed this interference to the State of France, even though it was committed by private parties, since French authorities had not taken any steps to prevent the actions of the farmers. The issue before the ECJ was whether the actions of these private individuals amounted to a violation of the freedom of movement of goods, and whether they were attributable to the State of France. The Court found that the interruption of means of transport, the damage to the agricultural goods being transported, and the climate of insecurity generated by the events, amounted to an obstacle to the freedom of circulation of goods within the Community, and that France was required to take action to secure such freedom, even if this entailed measures against private individuals. One interesting feature of the case is that the actions of the French farmers were never characterized by the Commission or the French government as an exercise of the right to protest; rather, these acts were referred to as “acts of violence.” The only instance in which a justification was attempted was when France presented the motivation for the acts of the French farmers, which was general discontent and deep concern over their loss of business caused by the competition with foreign products. To this, the ECJ replied that “[a]pprehension of internal difficulties cannot justify a failure by a Member State to apply Community Law correctly.”
- 35.
Paper Mills Award of MERCOSUR, supra n 27, para 40.
- 36.
Ibid, para 42.
- 37.
Ibid, para 94.
- 38.
Ibid, para 44.
- 39.
Ibid, para 51. In ECJ, Schmidberger, case C-112/00, [2003] ECR I-5659, a preliminary ruling procedure, environmental activists in Austria wanted to organize a demonstration to raise awareness about the issue of air pollution on the Brenner road, as part of a much broader and very sensitive issue regarding environmental protection in the Brenner road area. In order to organize their demonstration, the protesters requested an authorization from public authorities, which was granted. Aiming at reducing the inconvenience related to such a demonstration, an early warning about the demonstration taking place was given and an alternative route was organized, among other measures designed to minimize the effects of the demonstration on traffic in the area. The issue was presented before the ECJ asking whether the activities of the public authorities in allowing the demonstration to happen constituted an interference with the fundamental freedom of free circulation of goods. By invoking the case law of the ECJ in terms of fundamental rights, the ECJ concluded that fundamental rights, as protected by the constitutional traditions of the Member States, and given special relevance to the provisions of the European Convention on Human Rights (ECHR), could indeed be justifiable interferences with economic freedoms. According to the ECJ, measures incompatible with fundamental rights recognized in the ECHR and in constitutional traditions are not acceptable within the Community. The ECJ went on to say that, since both the Community and the Member States must protect human rights, the protection of these rights is an interest that in principle justifies interfering with an economic freedom. The ECJ concluded that national authorities were entitled, in the exercise of their margin of appreciation, to conclude that the legitimate aim of that demonstration could not be achieved by means less restrictive of Community principles.
- 40.
Paper Mills Award of MERCOSUR, supra n 27, para 46.
- 41.
Ibid, para 55.
- 42.
Ibid, para 156.
- 43.
This dispute even became the object of an appeal to the Permanent Revision Tribunal, where it was dismissed. The Permanent Revision Tribunal argued that its mandate extended only to the appeal of an award in its entirety, and not the appeal of interlocutory decisions. See Laudo No 2/2006, Laudo do Tribunal Permanente de Revisão, Constituído em Plenário para Julgar o Recurso de Revisão Apresentado pela República Argentina contra a Decisão do Tribunal Arbitral Ad Hoc, de 21 de Junho de 2006, que Foi Constituído para Julgar a Controvérsia Promovida pela República Oriental do Uruguai contra a República Argentina sobre a Questão: “Impedimentos Impostos à Livre Circulação pelas Barreiras em Território Argentino de Vias de Acesso às Pontes Internacionais Gal. San Martín e Gal. Artigas” [“Award N. 2/2006, Award of the Permanent Revision Tribunal, Instituted in its Plenary Form to Judge the Appeal Presented by the Argentinean Republic against the Decision of the Ad Hoc Arbitral Tribunal, of 21 June 2006, that Was Instituted to Judge the Controversy Brought by the Eastern Republic of Uruguay against the Argentinean Republic on the Question: ‘Impediments Promoted to the Free Circulation through the Barriers in Argentinean Territory of the Access Ways to the International Bridges General San Martín and General Artigas’”], of 06 July 2006.
- 44.
Paper Mills Award of MERCOSUR, supra n 27, para 105.
- 45.
Ibid, para 116.
- 46.
Ibid, para 119.
- 47.
Ibid, para 122.
- 48.
Ibid, para 144.
- 49.
Ibid, paras 150–152.
- 50.
Ibid, para 155.
- 51.
Ibid, para 125.
- 52.
Cf the presentation of the Argentinean representative on the hearing of 10 Aug 2006.
- 53.
Paper Mills Award of MERCOSUR, supra n 27, para 127.
- 54.
Ibid, para 128. This rule is enshrined in Art 27 Vienna Convention on the Law of Treaties, explicitly referred to by the Arbitral Tribunal.
- 55.
See e.g. cases involving Germany, which greatly helped the development of fundamental rights within the EU. The contribution of Germany is especially mentioned by Craig and de Búrca (2003), pp. 320–326. Advocate-General Jacobs has pointed out in his Opinion in the Schmidberger case, supra n 39, however, that it is not any fundamental right found within a national Constitution that deserves consideration at the Community level. In some instances, it is even imaginable that certain fundamental rights can be recognized as illegitimate objectives by the Community. It is understood that the ECHR provides a good reference of the common ground of fundamental rights to be protected within the Community legal order (for example the right to dignity in the Omega case). For a commentary on this, see Facenna (2004), p. 79. It is to be mentioned, furthermore, that the importance of using national constitutional traditions has decreased significantly within the case law of the ECJ. This is due partly to the fact that the ECHR offers a better standard of commonality (and does not require extensive comparative law analysis), and partly to the adoption of the EU Charter of Fundamental Rights, that has been increasingly used by the European Courts. See Craig and de Búrca (2011), pp. 394–399.
- 56.
The issue of legal autonomy of MERCOSUR law was particularly present in the first arbitral award of the Permanent Revision Tribunal under the Olivos Protocol, in which the Revision Tribunal considered the matter of the sources to be applied to decide on valid exceptions to free circulation obligations of the Asunción Treaty. See Laudo 01/2005, Laudo do Tribunal Permanente de Revisão para Entender do Recurso de Revisão Apresentado pela República Oriental do Uruguai contra o Laudo Arbitral do Tribunal Arbitral Ad Hoc de Data 25 de Outubro de 2005 na Controvérsia “Proibição de Importação de Pneus Remoldados Procedentes do Uruguai” [“Award 01/2005, Award of the Permanent Revision Tribunal to Understand the Appeal Presented by the Eastern Republic of Uruguay against the Arbitral Award of the Ad Hoc Arbitral Tribunal of 25 October 2005 on the Dispute ‘Prohibition of Importation of Remolded Tyres Originating from Uruguay’”], of 26 Dec 2005.
- 57.
Paper Mills Award of MERCOSUR, supra n 27, para 133.
- 58.
Ibid, para 134.
- 59.
Ibid, paras 138–139.
- 60.
Ibid, para 157.
- 61.
Ibid, para 158.
- 62.
Ibid, para 160.
- 63.
Ibid, para 85.
- 64.
Ibid, para 59.
- 65.
Ibid, para 130.
- 66.
Gargarella (2008).
- 67.
Paper Mills Award of MERCOSUR, supra n 27, para 130.
- 68.
Ibid, para 52.
- 69.
Gargarella (2008).
- 70.
ICJ, Pulp Mills on the River Uruguay (Argentine v Uruguay), judgment of 20 Apr 2010, ICJ Reports 2010, 14.
- 71.
ILA, Report of the Seventy-Third Conference, Rio de Janeiro, ILA Reports 2008, 55.
- 72.
For a more detailed analysis of the relationship between the two organizations, see Lixinski and de Andrade Coeera (2010).
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Franca Filho, M.T., Lixinski, L., Olmos Giupponi, B. (2019). Courts of Regional Economic Communities in Latin America and Human Rights Law. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_7
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