Comparing Human Rights Law in Custody Disputes: Europe vs. America, Study notes of Business

Download Comparing Human Rights Law in Custody Disputes: Europe vs. America and more Study notes Business in PDF only on Docsity! 201 1 Case of Julia Mendoza et al. v. State of Mekinés Memorial for the State 201 2 I. TABLE OF CONTENTS II. INDEX OF AUTHORITIES…………….…....….…………………………………………….5 III. STATEMENT OF FACTS……….………………………………………………..………...10 IV. LEGAL ANALYSIS …………………………………….………………………………….14 i. Preliminary Objections………………………………………………………………………...14 A. This Court should find that it may not undertake a review of alleged violations under the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance (CIRDI) because Mekinés has not accepted the jurisdiction of this Court in connection with its ratification of the CIRDI……….………………………………………14 B. The Court should not exercise jurisdiction or justification to intervene in the light of the principle of subsidiarity and in accordance with the appropriate application of the fourth instance formula and the margin of appreciation doctrine. ………………………………...15 i. The principle of subsidiarity supports a finding in the instant case that this Court should not intervene on the basis that domestic authorities acted properly and did not fail to ensure the human rights of Ms. Mendoza and Ms. Reis………………….............…..15 ii. This Court should apply the “fourth instance formula” to this case because Ms. Mendoza and Ms. Reis had their case adjudicated at every level of the Mekinés judiciary and a final judgment was rendered……………………………………………………...16 iii. The margin of appreciation doctrine applies in this case and should be invoked by the Court..................................................................................................................................22 ii. Analysis of Issues of Law……………………………………………………………………...27 A. Mekinés has complied with its duty, pursuant to Articles 17 and 19 of the American Convention, in combination with Article 1(1), “to take positive steps to ensure protection 201 5 II. INDEX OF AUTHORITIES Legal Books and Articles Andres B. Clark, Juvenile Solitary Confinement as a Form of Child Abuse. J. Am. Acad. Psychiatry Law 45:35-57 (2017) .....................................................................................................................34 Andreas Follesdal, Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights, 15 Int’l J. of Const. L. 359 (2017) .........................................................25, 26, 27 Anthony Giannetti, The Solitary Confinement of Juveniles in Adult Jails and Prisons: A Cruel and Unusual Punishment, 30 Buff. Pub. Int. L.J. 31 (2011-2012) ........................................................34 Diego Rodriguez Pinzon, The "Victim" Requirement, The Fourth Instance Formula and The Notion Of "Person" In The Individual Complaint Procedure of The Inter-American Human Rights System, 7 ILSA Journal of International & Comparative Law 369 (2001) .....................................18 IACHR Press Release, States in the Americas Must Take Urgent Action to Effectively Protect Mental Health and Ensure Universal Access to It in the Context of the COVID-19 Pandemic No. 243/20 (Oct. 2, 2020) ....................................................................................................................36 James A. Sweeney, The European Court of Human Rights in the Post-Cold Era: Universality in Transition (2013) ..........................................................................................................................18 Jo M. Pasqualucci, The Practice and Procedure of the Inter-America Court of Human Rights (2003) ................................................................................................................................18, 20, 21 Onder Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases, 8 German Law J. 2007………………………………....24 Pablo Contreras, National Discretion and International Deference in the Restriction of Human Rights: A Comparison Between Jurisprudence of the European and Inter-American Court of Human Rights, 11 NW. U. J. Int’l Hum. Rts. 28, 30 (2012) .........................................................23 201 6 Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, 97 Am. J. Intl L. 39 (2003) ..................................................................................................................15 Petronella Grootens-Wiegers, et al. Medical decision-making in children and adolescents: developmental and neuroscientific aspects. BMC Pediatrics 17(1):120 (May 8, 2017) ..............39 Rafael Silva Nino de Zepeda, Inter-American Children and their Rights: A Critical Discourse Analysis of Judicial Decisions of the Inter-American Court of Human Rights, The International J. of Children’s Rights 30(2022) .......................................................................................................37 Roland Garve et al., Scarification in sub-Saharan Africa: social skin, remedy and medical import, 22 Tropical Med. & Int’l Health. 708, 715 (2017) ..................................................................29, 35 Thomas A. O’Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 Human Rights Quarterly 474, 475 (1982) ........................................................................................................................................................22 International NGO Council on Violence against Children, Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition (2012) ..………….31, 32, 34, 38, 39 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR 2 (2002) ........................................................23 Legal Cases: Advisory Opinions Communication No. R.9/35 (2 May 1978), U.N. Doc. Supp. No. 40 (A/36/40) at 134 (1981), para. 9.2(b)2(ii)..............................................................................................................................25 Inter-American Court of Human Rights, Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002 page 7 (August 28, 2002) .........................................28, 32, 39, 40 European Court of Human Rights, Note by Jurisconsult, Interlaken Follow-Up: Principle of Subsidiarity, (July 7, 2010) ...................................................................................15, 16, 18, 19, 22 201 7 European Court of Human Rights, Practical Guide on Admissibility Criteria,72 (updated) 31 August 2022………………………………...………………………………......……………17, 18 Human Rights Committee, Communication No. 1763/2008, Pillai v. Canada, Views adopted on 25 March 2011……………………………………..…………………………………………….18 Proposed Amendments to the Naturalisation Provisions of the Political Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4 (Jan. 19, 1984)..................24 Legal Cases: Contentious Cases Communication No. 1881/2009, Masih v. Canada, Views adopted on 24 July 2013, dissenting opinion of Committee member Mr Shany, joined by Committee members Mr Flinterman, Mr European Court of Human Rights, Khider v. France 39364/05 (July 7, 2009) ...........................18 European Court of Human Rights, Ilascu and Others v. Moldova and Russia 48787/99, 349 (August 7, 2004)............................................................................................................................33 Kälin, Sir Rodley, Ms Seibert-Fohr and Mr Vardezelashvili………………………..…………..18 Handyside v. United Kingdom, App. No. 5493/72, Eur. Ct. H.R., at IT 47-48 (1976) ................23 Inter-American Court of Human Rights Precautionary Measure, 62 children held in the Juvenile Center of Provisional Confinement, Guatemala (Nov. 24, 2004) …........................................... 33 Inter-American Court of Human Rights, Atala Riffo and Daughters v. Chile para. 205 (February 24, 2012)...……………………………………………………………..…………..37, 38, 40, 41 Inter-American Court of Human Rights, Carranza v. Argentina, Case 10.087, 254, OEA/ser.L/VII, doc. 7, rev. 1, para. 1 (1998)..........................................................................20, 22 Inter-American Court of Human Rights, Clifton v. Jamaica, Case 9620, 154, Report No. 29/88, OEA/Ser.L./V/II.74, doc. 10 rev. 1 (1988) .............................................................................17, 22 Inter-American Court of Human Rights, Gelman v. Uruguay (Feb. 24, 2011) …..…....…....37, 38 201 10 III. STATEMENT OF FACTS The respondent State of Mekinés is among the largest, most populous, and most ethnically diverse countries in the Western Hemisphere.1 Despite its history of colonization predicated on enslaved labor, Mekinés boasts a regionally-dominant and diverse economy and has forged a constitutional democracy premised on “promoting the common good, without prejudice based on origin, race, sex, color, age, or any other form of discrimination.”2 To this end, the country has not only established a strong constitutional basis for racial equality,3 but has sought to curtail the systemic challenges resulting from its brutally-imposed colonial past. For example, Mekinés has established a National Human Rights Ombudsperson within its Ministry of Women, Family, and Human Rights (MWFHR) and instituted a variety of targeted initiatives.4 This includes the launch of a Data from Zero Discrimination hotline where Mekinesians can report on instances of observed racial violence.5 Mekinés has rejected the theocratic roots of its colonial past, declaring its government to be secular and codifying the freedom of belief and the independence of state and religious institutions from each other.6 Notwithstanding its Roman Catholic tradition, Mekinés has become increasingly diverse with regard to its religious makeup, with a majority of its citizens now affiliating with other branches of Christianity and nearly 20% of citizens not identifying as Christian at all.7 1 Problem, para. 1; Notably, approximately 55% of the Mekinés population identifies as Afro-descendant. Problem para. 4. 2 Problem, paras. 2 & 4. 3 Id.; See also para. 16, which describes the Mekinesian Constitution’s codification of access to justice as a fundamental right. 4 Problem, para. 5. 5 Problem, paras. 13-14. 6 Problem, paras. 6-7. 7 Problem, para. 12. 201 11 The Mekinés MWFHR monitors complaints and assaults relating to religiously-based discrimination and intolerance and conducts public-facing research regarding the status of religious intolerance in the country–a practice that has drawn attention to structural and data- related challenges that remain throughout Mekinesian society.8 Notably, in response to public feedback on the issue, the State recently created the National Committee for Religious Freedom composed of civil society leaders to advise the MWFHR on matters relating to religious tolerance.9 As with other countries in the region, Mekinés faces ongoing challenges in its efforts to combat the enduring legacy of its colonial domination.10 Another dominant focus of Mekinés’ democratic government in recent years has been the enhancement of welfare protections relating to its most vulnerable class of citizens–its children.11 For example, the MWFHR has been restructured to prioritize combatting pedophilia, advocacy for adoption, combatting suicide, and addressing violence against women.12 Additionally, pursuant to the Children’s Rights Act, autonomous Councils for the Protection of Children (Child Protection Councils) were established to ensure the far-reaching enforcement of children’s rights as an “absolute priority” at the local level.13 These Child Protection Councils are the first to receive reports of potential child abuse, including alleged abuse tied to religious practice.14 These reports are conveyed to the Mekinesian Public Prosecution Service.15 Finally, in the interest of advancing scientifically-sound research relating to the family to inform public 8 Problem, para. 12 9 Problem, para. 15. 10 See, e.g., Problem, para. 14. 11 Problem, para. 9. 12 Id. 13 Problem, para. 22. 14 Problem, para. 23. 15 Problem, paras. 22-23. 201 12 policies both domestically and internationally, Mekinés created the National Observatory for the Family under its newly-minted National Secretariat for the Family.16 The State is both a member of the Organization of American States (OAS) and a State Party to the American Convention on Human Rights (ACHR or Convention), and recently ratified in 2019, with reservations, the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance (CIRDI).17 Additionally, Mekinés is a known international proponent of Convention on the Elimination of All Forms of Racial Discrimination (CERD) since its ratification in 1970.18 In the matter at hand, Helena Mendoza Herrera, aged 10, was placed in the custody of her father, Mr. Marcos Herrera, after her mother and former caregiver, Ms. Julia Mendoza, permitted her minor child to undergo an initiation ritual associated with Candomblé, a minority Afro- Mekinesian belief system.19 The initiation ritual involves scarification of the hands and head with sharpened fishbones, requires the person to have a clean shaven head and be doused in animal blood, and mandates a prolonged isolation period which lasts twenty-one days.20 It is widely regarded to be a long and intense ritual, and permanently alters the initiate’s skin and appearance.21 After Helena underwent the practice Mr. Herrera filed a case with his regional Council for the Protection of Children, highlighting his concerns over his child’s physical safety, possibly forced religious entrapment, as well as Helena’s continuing education and development.22 16 Problem, para. 17. 17 Problem, para. 3. 18 Problem, para. 3. 19 Problem, para. 29;12. 20 Clarification, 8. 21 Ibid. 22 Problem, para. 30. 201 15 the event the Court considers the merits of this case, it should limit its consideration to alleged violations under the American Convention in respect of which Mekinés has accepted the jurisdiction of this Court. B. The Court should not exercise jurisdiction or justification to intervene in light of the principle of subsidiarity and in accordance with the appropriate application of the fourth instance formula and the margin of appreciation doctrine. i. The principle of subsidiarity supports a finding in the instant case that this Court should not intervene on the basis that domestic authorities acted properly and did not fail to ensure the human rights of Ms. Mendoza and Ms. Reis. Subsidiarity is a well-established legal principle that aims to achieve an appropriate balance between the international tribunal and courts operating at the domestic level.35 Its application employs a structural analysis to aid a regional court of human rights in relation to appropriate parameters in the exercise of its jurisdiction vis a vis the decisions taken by domestic authorities. The principle of subsidiarity, one of the foundational principles of the European human rights system, holds that the European Court of Human Rights (ECHR) should intervene only where a State’s domestic authorities fail to ensure respect for the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).36 Indeed, in Protocol No. 15 amending the European Convention the principle of subsidiarity was added to the Preamble of the Convention.37 35 See generally Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, 97 AM. J. INT'L L. 39 (2003). 36 European Court of Human Rights, Note by Jurisconsult, Interlaken Follow-Up: Principle of Subsidiarity, para. 2, page 2 (July 7, 2010) [Interlaken Follow-Up]. 37 Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 213, 24 June 2013, Preamble. 201 16 The principle of subsidiarity provides that the Court can and should intervene only where the domestic authorities fail in ensuring respect for the rights enshrined in the Convention.38 In Scordino v. Italy, the ECHR held that “the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on national authorities” and, further, “the machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights” pursuant to Article 13 and 35 § 1 of the Convention.39 Thus, the ECHR has recognized that the decision of the national judiciary of the member States should take precedence before applicants bring their complaint to the ECHR. Given that the decisions of other international tribunals have assisted this Court in instances where similar law or facts are at issue, Respondent urges this Court to have regard to the application of the principle of subsidiarity by other international tribunals in the instant case and, applying that doctrine, defer to the decisions of the Mekenisian courts. Here, Ms. Mendoza and Ms. Reis had the opportunity to argue their case at every level of the judiciary in the State of Mekinés. Accordingly, the State of Mekinés fulfilled its human rights obligation to the petitioners under Article 8 (Right to Fair Trial) and Article 25 (Right to Judicial Protection) and, broadly, under Article 1 (Obligation to Respect Rights) of the American Convention. In the light of the foregoing, the courts of Mekinés did not fail in their task of ensuring that the rights of Julia and Tatiana were respected. Thus, this Court must decline jurisdiction to hear this case under the principle of subsidiarity as judicial intervention is not required here. ii. This Court should apply the “fourth instance formula” to this case because Ms. Mendoza and Ms. Reis had their case adjudicated at every level of the Mekinés judiciary and a final judgment was rendered. 38 Interlaken Follow-Up, page 2, para. 2. 39 Interlaken Follow-Up, page 3, para. 7. 201 17 The “fourth instance formula” – related but distinct from the principle of subsidiarity – dictates that a court or tribunal must decline jurisdiction where a competent court or tribunal that has jurisdiction over the same matter has already rendered a final judgment.40 This formula is based on the principle of res judicata, according to which a matter that has already been adjudicated by a competent court cannot be re-litigated.41 Professor Jo M. Pasqualucci, a leading commentator on the Inter-American Court, notes that it does not fall within the jurisdiction of the ACHR to act as an appellate body with the authority to examine every alleged error of domestic law or fact that national courts may have committed while acting within their jurisdiction.42 Overall, the fourth instance formula recognizes the importance of the finality of domestic judicial decisions and promotes respect for the decisions of other courts and tribunals.43 The Inter-American Commission and this Court have applied the fourth instance formula previously and should do so in the instant case. In Case 9260, the Commission considered the petition of Mr. Clifton Wright, a Jamaican man convicted of murder. Upon review of the case, the Commission found that since Mr. Wright fully exhausted his domestic judicial options, the case could not be heard by the IACHR. It found that undertaking the review would have the effect of reviewing “the holdings of the domestic courts of the OAS member states” contrary to the proper role of the Court.44 40 Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights 93 (2003). See also James A. Sweeney, The European Court of Human Rights in the Post-Cold Era: Universality in Transition (2013) 33 (noting the distinction between the principles). 41 Pasqualucci, p. 93. 42 Pasqualucci, p. 93. See also Diego Rodriguez Pinzon, The "Victim" Requirement, The Fourth Instance Formula and The Notion Of "Person" In The Individual Complaint Procedure of The Inter-American Human Rights System, 7 ILSA Journal of International & Comparative Law 369 (2001). 43 European Court of Human Rights, Practical Guide on Admissibility Criteria,72 (updated) 31 August 2022 [Practical Guide on Admissibility]. 44 Clifton v. Jamaica, Case 9620, Inter-Am. Ct. H.R. 154, Report No. 29/88, OEA/Ser.L./V/II.74, doc. 10 rev. 1 (1988). 201 20 guarantees, unless it considers that a possible violation of the Convention is involved.”56 Ultimately, the role of international human rights bodies is to ensure that treaty commitments are observed. Further examination into the decisions rendered by the domestic courts is warranted “only insofar as the mistakes entailed a possible violation of any of the rights set forth in the Convention.”57 The IACHR applied the foregoing logic in Marzioni v. Argentina, a case considered by a leading commentator as fundamental in the “evolution of the standards of the Inter-American system, considering the current trend in the hemisphere of transition to democracy.”58 Marzioni establishes that “states with functioning judiciaries in the framework of a democratic society will benefit from a degree of deference that the Commission gives to domestic courts.”59 In order for the Court to grant review of an alleged violation, the violation must be "manifestly arbitrary" and thereby serves as a signal to States with pronounced problems in their judiciaries where there is a clear and compelling need to improve the independence and impartiality of the administration of justice. This is best exemplified in the case Carranza v. Argentina. There, Mr. Gustavo Carranza petitioned the IACHR, alleging that the Republic of Argentina violated his “right to a fair trial (Article 8 ), right to privacy (Article 11), the right to have access to public service (Article 23(1)(c)), and the right to judicial protection (Article 25).”60 The Commission held that Argentinian courts did not provide adequate reasoning behind their decision denying the petitioner judicial recourse under the logic that they deemed his case 56 Santiago Marzioni v. Argentina, Case 11.673, Inter-Am. Ct. H.R. 76, OEA/Ser.L./V/II.95, doc. 7 (1997), para 35 [Marzioni v. Argentina.] 57 Marzioni v. Argentina, para 35. Rep. No. 34/97, Inter-Am. Ct. H.R., OEA/ser.LI./V/., doc. 6 (1997); Melba del Carmen Suárez Peralta v Ecuador, para 83. Case No. 12.683, Inter-Am Ct. H.R., 26 January 2012; Marco Bienvenido Palma Mendoza et al. v Ecuador, para 53. Case No. 12.004, Inter-Am Ct. H.R, 24 February 2011. 58 Pasqualucci, 92. 59 Pasqualucci, 92. 60 Carranza v. Argentina, Case 10.087, Inter-Am. Ct. H.R. 254, OEA/ser.L/VII, doc. 7, rev. 1, para. 1 (1998). 201 21 non-justiciable. The Commission determined this decision to be “manifestly arbitrary” and as such, a violation of Article 25 and Article 8(1) of the American Convention. Unlike the Argentinian courts in Carranza, the Mekensian courts did not arrive at their decision under “manifestly arbitrary” reasoning. Rather, the Supreme Court of Mekinés made its decision by carefully balancing the inherent rights of Helena, the minor child, and the comparative benefits and costs of awarding custody to one or another of her parents. Ultimately, the Supreme Court rendered its decision on the basis of its duty to protect the rights of children – in this case, eight-year-old Helena. On a policy level, hearing this case risks compromising the judicial economy of the Inter- American Human Rights system, opening it to the real possibility of system overload by petitions essentially seeking appellate review. Cases should remain at the domestic level when it is evident, as it is here, that the domestic courts acted fairly and thoroughly. Here, the appellate level domestic court saw an error in the lower level court’s decision and corrected it with an impartial analysis that respected the legal rights of the parties, consistent with the rights to judicial protection under Article 25 of the ACHR. Both the appellate court and the Supreme Court of Mekinés decried the decision of the family court judge and decided the case, in their own analysis, strictly on judicially permissible grounds. The vastly differing decisions between the appellate level court and the Supreme Court show that the Mekinés judiciary is not corrupt nor being influenced by any outside source – Ms. Mendoza and Ms. Reis were given access to justice in the form of a fair trial and the opportunity to appeal the trial court’s decision and have their case heard by the highest court in Mekinés. Moreover, should the Court hear this case, it will encourage applicants to use the Court as an opportunity to file complaints when a judgment is not rendered in their favor at the 201 22 domestic level. Past decisions by this Court support the position that a petitioner must have both exhausted all legal recourse at the domestic level and that the domestic court’s judgment must have violated the rights of the petitioner under the American Convention.61 In summary, it is not this Court’s role to disregard the limits of its jurisdiction in respect of domestic decisions. The domestic courts decisions in this case did not act impartially and did not lack reasons for the decisions rendered. The Supreme Court of Mekinés’ decision was not arbitrary. Rather, the Court rendered its decision appropriately on the basis of the State’s duty to protect the rights of children – in this case, the minor child, eight year-old Helena. Under the fourth instance formula, this Court must defer to the decision of the Mekinés Supreme Court or risk becoming an appeals court of the fourth instance for cases that should appropriately remain at the domestic level. iii. The margin of appreciation doctrine applies in this case and should be invoked by the Court. The margin of appreciation doctrine recognizes the discretion afforded to States in the interpretation and application of international human rights treaties or standards. Similar to the fourth instance formula, the margin of appreciation doctrine falls under the broad concept of “substantive subsidiarity.”62 In cases where international law provides a general framework for human rights protections, the margin of appreciation doctrine leaves room for states to make decisions that reflect their unique social, cultural, and political circumstances.63 The rationale is clear: international human rights standards cannot be applied to every Member State across the 61 See generally Inter-Am. Ct. H.R., Carranza v. Argentina, Case 10.087, 254, OEA/ser.L/VII, doc. 7, rev. 1, para. 1 (1998); Inter-Am Ct. H.R., Santiago Marzioni v. Argentina, Case 11.673, 76, OEA/Ser.L./V/II.95, doc. 7 (1997), para 35; Inter-Am. Ct. H.R., Clifton v. Jamaica, Case 9620, 154, Report No. 29/88, OEA/Ser.L./V/II.74, doc. 10 rev. 1 (1988). 62 Interlaken Follow-Up, p. 12, para. 40. 63 Thomas A. O’Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 Human Rights Quarterly 474, 475 (1982). 201 25 society (3) how invasive the proposed interference will be; (4) whether the restriction of the right is necessary; and (5) whether the reasons offered by the national authorities are relevant and sufficient.”74 As developed by the ECHR, all five prongs should be satisfied to defer to the domestic court’s decision as to whether there is a violation.75 In Artavia-Murillo v. Costa Rica on in vitro fertilization (IVF), Costa Rica invoked the application of the doctrine. There, the IACHR rejected the State’s argument regarding its margin of appreciation on the basis that Costa Rica had failed to balance arguments for the right to life against other competing rights, to privacy and family life.76 In Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, by contrast, where discriminatory legislation targeting married Mauritian women was under consideration, the UN Human Rights Committee underlined the margin of states in regulating family life and implicitly applied the margin of appreciation doctrine, noting that “the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions.”77 The most relevant application of the margin of appreciation doctrine for the IACHR would, in the words of a leading commentator, “largely be restricted to balancing among the rights of the American Convention on Human Rights, or articles with a similar ‘necessity’ clause where balancing may be appropriate.”78 Article 12(3) (Freedom of Conscience and Religion) would fall within this category. Further, and consistent with the application of the doctrine by the 74 Follesdal, 365. 75 Follesdal, 365. 76 Follesdal, 369. 77 Communication No. R.9/35 (2 May 1978), U.N. Doc. Supp. No. 40 (A/36/40) at 134 (1981), para. 9.2(b)2(ii). 78 Follesdal, 368. 201 26 ECHR, the IACHR would accordingly wish to analyze whether the State in question has undertaken the “proportionality test.”79 Here, Petitioners allege that the Mekinesian courts violated their Right to Freedom of Conscience and Religion under Article 12 of the American Convention. Looking to the ECHR, rights such as freedom of religion fall into the category where deference to the domestic authorities is warranted, and generally uphold the domestic decisions. This Court should apply the margin of appreciation doctrine in the instant case in like manner to the ECHR. The application of the proportionality test in assessing whether a margin of appreciation is justified would reveal that all four prongs of the test were indeed satisfied. In the instant case, the legitimacy of the social objective pursued is met as the Court is focused on the rights of the child and rights of the family, a legitimate and important social objective. Subsequently, this fulfills the second prong of the test, as the rights of the child and rights of the family are fundamental rights in the foundation of a democratic society. Thus, under the third prong of the proportionality test, if the IACHR were to interfere, it would be particularly invasive considering that the case deals with integral rights within the Mekinesian democracy in respect of which the Mekinesian courts should be granted deference. Finally, regarding the fourth prong, the restriction of rights, in this case, the Petitioners right to have full custody of Helena, is a necessary restriction because the Petitioners’ actions, allowing Helena to undergo a physically and mentally harmful and medically unnecessary procedure, violate the minor child’s rights, and the Mekinés courts provide relevant and sufficient reasoning for their decision to restrict the Petitioners’ rights in this way, satisfying the fifth and final prong of the proportionality test. 79 Follesdal, 368. 201 27 The application of the margin of appreciation doctrine in respect of determining whether a violation of human rights obligations has occurred is a sound and beneficial practice that supports substantive subsidiarity and judicial economy. In light of the foregoing, and in view of the fact that the State of Mekinés has not violated Petitioners’ rights under the American Convention (or indeed the CIRDI), this Court should grant deference to the domestic courts under the margin of appreciation doctrine and dismiss the petition. ii. Analysis of Issues of Law A. Mekinés has complied with its duty, pursuant to Articles 17 and 19 of the American Convention, in combination with Article 1(1), “to take positive steps to ensure protection of children against mistreatment” occurring in the form of an internationally-recognized harmful practice. The State has complied with its duties as a party to the American Convention as well as other international legal standards in the case at hand. Specifically, Mekinés has taken positive actions to fully meet its obligations relating to the rights of the family (Article 17) and the rights of the child (Article 19) under the ACHR by utilizing its judicial institutions to prioritize Helena’s best interests and remove her from the custody of her mother, given the threats of physical harm, psychological and developmental damage, and overarching threats to individual and public health presented to the courts. i. The State complied with its unquestioned duty to protect the minor child when it acted to protect Helena from further exposure to violence and physical harm within her mother’s home. Article 17 of the American Convention provides that “[i]n the case of dissolution [of the family unit], provision shall be made for the necessary protection of any child solely on the basis of their own best interests” (emphasis added).80 Moreover, Article 19 of the ACHR clarifies that 80 American Convention on Human Rights, art. 17(4), Nov. 22, 1969. 201 30 result, the process of scarification is painful and permanently disfiguring, regardless of how it is done.94 Even with parental consent, the Supreme Court’s custodial ruling should stand and did not constitute a violation of the ACHR; rather, Mekinés satisfied its overarching obligation in relation to child protection in the instant matter. a. Petitioner’s claim that the violence and physical harm Helena endured was justified under domestic and international concepts of freedom of religion and belief is baseless. It is essential to recognize that the physical violence to which Ms. Mendoza subjected her daughter in the name of her faith cannot be justified on the basis of an international consensus regarding the freedom of religion or associated intrinsic parental rights. Indeed, the Article 11 of the ACHR explicitly provides that “[f]reedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”95 In the instant case, the faith-based initiation ritual under scrutiny interfered with Helena’s rights and was therefore well beyond the scope of religious protections as they are defined within the Inter-American human rights system.96 Therefore, allegations that Ms. Mendoza and her partner had their rights to freedom of conscience under Article 12 of the Convention violated by the Supreme Court must fail.97 Additionally, the scarring ritual at the heart of the custody case here unequivocally represents an internationally-recognized harmful practice that is wholly at odds with the minor child’s right to “maximal survival and development,” as well as her “right to protection from all forms of physical and mental violence” as it has been defined and expounded upon by the UN 94 Id. 95 American Convention, art. 11(3). 96 American Convention, art. 11(3). 97 Problem, para. 39. 201 31 Committee on the Rights of the Child (CRC Committee).98 In particular, General Comment 13 adopted by the CRC Committee is explicit in its understanding that “all forms of violence [toward children], however light, are unacceptable,” and that infrequency, a lack of malicious intent, or a lack of severity of violence cannot legitimate justifications for such conduct. 99 Furthermore, scarring–even where undertaken for ritual religious purposes–is expressly included among the impermissible harmful practices that may not be practiced on children according to widespread interpretations of international human rights law.100 Religious belief, parental consent, cultural acceptance, and even voluntary submission on the part of the harmed child may not validate any form of violence or physical harm.101 In fact, the dominant understanding of children’s rights under international human rights law recognizes that many cultural, religious, and tradition-based harmful practices often retain widespread endorsement not only within communities, but within the family unit.102 Indeed, parents are frequently the perpetrators of impermissible violence against children, often acting out of the belief that are aiding their child’s development or genuine religious conviction.103 Nevertheless, multiple UN human rights bodies have clarified the incompatibility of child rights with parental powers that extend to the perpetration or authorization of harmful traditional practices, irrespective of their basis in parents’ culture, tradition, religious belief or other belief system.104 98 International NGO Council on Violence against Children, Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition. (Oct. 2012) [International NGO Council]. 99 CRC General Comment 13, para. 3. 100 CRC General Comment 13, para. 31. See also African Charter on the Rights and Welfare of the Child, art. 21(1) (July 1, 1990). 101 CRC General Comment 13, para. 3. 102 International NGO Council at page 41. 103 International NGO Council. 104 See, e.g., Office of the High Commissioner for Human Rights, Fact Sheet No. 23, Harmful Traditional Practices Affecting the Health of Women and Children (n.d.); Committee on the Rights of the Child, General Comment 13: The right of the child to freedom from all forms of violence CRC/C/GC/13 (Apr. 18, 2011) para. 47. See generally, International NGO Council. 201 32 Additionally, while international law generally recognizes the right of the child to manifest her beliefs, as Mekinsian Justice Juan Castillo reiterated in his holding,105 this recognition must be necessarily tempered according to not only the “evolving capacities of the child,”106 but overarching State obligations to promote health, public safety, and morals.107 This Court has reiterated this child’s rights-based understanding of violence against children in its own advisory opinion regarding the interpretive insights provided by the CRC,108 and the Mekinés Supreme Court’s custody decision in the instant case indisputably aligns with these principles of protection and prevention.109 The holding further comports with informative recommendations from international experts that States “ensure accountability and appropriate remedies and end impunity” while exercising caution when criminally prosecuting parents who have committed harmful practices against their children according to the children’s individual best interests.110 ii. The Supreme Court’s holding should stand, as the ritual to which Helena was subjected resulted in unacceptable social isolation with the potential to gravely inhibit the child’s psychological development. The State’s removal of the minor child from Ms. Mendoza’s custody was further justified given Ms. Mendoza’s decision to subject her eight-year-old daughter to complete isolation for a period of twenty-one days.111 This sequestration patently violated not only the American 105 Problem, para. 38. 106 Convention on the Rights of the Child, art. 14 (Nov. 20, 1989). 107 Id. 108 Juridical Condition, para. 8. 109 Problem, para. 37. 110 International NGO Council, p. 42. 111 Clarifications, para. 8. 201 35 The World Health Organization (WHO) defines “health” to mean “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”123 This holistic standard has been widely mirrored by the international community, including this Court.124 As such, holistic conceptions of health under this definition fall naturally within judicial decision making among State Parties. In the instant case, Ms. Mendoza’s behavior wantonly endangered the health of her daughter, including her physical, mental and social well- being, justifying the Supreme Court’s decision to terminate her parental rights. In addition to the previously discussed violence and psychological injuries endured by the minor child as a consequence of harmful traditional practices, the initiation ritual under scrutiny here risked not only the health of the child, but that of the public at large. First and foremost, the act of scarification Helena endured was inherently risky as it requires multiple incisions to be made in the skin, resulting in blood loss from those cuts and opening the body up to possible infection through those open wounds–a risk reinforced and indeed elevated by Ms. Mendoza’s subsequent decision to permit her daughter to be isolated in a manner where she could not be adequately monitored for signs of illness.125 Second, the scarring implements utilized in the ritual were not medical instruments, but fishbones.126 It is beyond argument that fishbones are not sterile medical instruments, and their use in the ritual further heightened Helena’s susceptibility to infection.127 123 World Health Organization, Constitution, Preamble (July 22, 1946). 124 See, e.g., International Committee on Economic, Social and Cultural Rights, General Comment No. 14, Right to Health E/C.12/2000/4 (August 11, 2000); IACHR Press Release, States in the Americas Must Take Urgent Action to Effectively Protect Mental Health and Ensure Universal Access to It in the Context of the COVID-19 Pandemic No. 243/20 (Oct. 2, 2020). 125 Roland Garve et al., Scarification in sub-Saharan Africa: social skin, remedy and medical import, 22 Tropical Med. & Int’l Health. 708, 715 (2017); Clarifications, para. 8. 126 Clarifications, para. 8. 127 Clarifications, para. 8; Roland Garve et al., Scarification in sub-Saharan Africa: social skin, remedy and medical import, 22 Tropical Med. & Int’l Health. 708, 715 (2017). 201 36 Finally, the ritual required the throwing of goat or sheep’s blood on Helena to “bathe” her and to “cleanse” her spirit.128 This constitutes a clear threat to both public health and Helena’s own individual health in violation of the Convention. Medical science indicates that bloodborne pathogens in the goat or sheep blood present risk insofar as such pathogens can be transmitted from the animal blood to a human, in this case, the minor child, through the multiple open cuts created through the scarification process on the head and arms.129 This undue risk to Helena’s health is in clear violation of her rights under both the Convention and the CRC.130 Specifically, Article 14 of the CRC dictates that while “States parties shall respect the right of the child to freedom of thought, conscience and religion”, this right is subject to limitations which include protections in the name of public health and in the name of protecting the minor child’s rights to health.131 In short, Ms. Mendoza’s decision to allow an unsterilized, non-medical instrument to repeatedly cut into her daughter’s skin exposed the minor child to serious, even life-threatening, infections.132 Furthermore, the ritualistic dousing of eight-year-old Helena in an animal blood bath while she was experiencing multiple open wounds is medically and morally indefensible, given the potentially deadly or debilitating pathogens to which the minor child could have been exposed to through the process.133 Taken together, these obvious and grave risks to individual and public health more than justify the Supreme Court’s decision to terminate Ms. Mendoza’s 128 Clarification, 2 - 3 129 United States Dept. of Labor, Occupational Safety and Health Administration, Fact Sheet: OSHA’s Bloodborne Pathogens Standard (2011); Ingrid Koo, Zoonotic Diseases Passed from Animals to Humans. 130 American Convention on Human Rights, art. 12(3) (Nov. 22, 1969); CRC, art. 14. 131 CRC, art. 14. 132 Garve, p. 715 (2017); Clarifications, para. 8; Problem, para. 29. 133 United States Dept. of Labor, Occupational Safety and Health Administration, Fact Sheet: OSHA’s Bloodborne Pathogens Standard (2011); Ingrid Koo, Zoonotic Diseases Passed from Animals to Humans. 201 37 custodial rights over her daughter under the standards previously set forth by this Court and other human rights tribunals and bodies. iv. Despite representations by petitioners, Helena could not meaningfully and independently give informed consent to the physically and psychologically harmful practices at issue, and the Supreme Court appropriately considered the minor child’s input regarding her custodial circumstances. In addition to the foregoing health and safety human rights concerns presented by Helena’s involvement in the ritual facilitated through her mother’s ill-conceived consent, Helena’s age at the time of the initiation presented an additional basis for the Supreme Court to properly terminate Ms. Mendoza’s custody of her child. Put simply, a fundamental issue in this custody case is the failure of Ms. Mendoza to consider the maturation level of her eight-year-old minor child to undertake a decision with potentially life threatening consequences and serious health (physical, mental and social) impacts.134 In Atala Riffo and Daughters v. Chile, this Court determined that a State Party to the ACHR should approach the incorporation of/deference to a child’s input in matters of personal well-being to the extent “the child is capable of forming his or her own views in a reasonable and independent manner.”135 Accordingly, States are obliged to recognize the limited autonomy and inherent vulnerability of children, incorporate their input in proceedings relating to them on a graduated basis that provides deference commensurate with biological age and educational advancement, and act upon the knowledge that “the ultimate objective of protection of children in international instruments is the harmonious development of their personality.”136 In Gelman v. Uruguay, this Court underscored that the rights of the child “implies the possibility of all human beings to self-determination and to freely choose the 134 See supra Section B(1). 135 Inter-Am. Ct. H.R., Atala Riffo and Daughters v. Chile, para. 200 (February 24, 2012) [Atala Riffo and Daughters v. Chile]. 136 Id. at paras. 199-200. See also Rafael Silva Nino de Zepeda, Inter-American Children and their Rights: A Critical Discourse Analysis of Judicial Decisions of the Inter-American Court of Human Rights, 552-76 Int’l J. of Children’s Rights 30 (2022). 201 40 The Mekinés courts appropriately considered both Helena’s input and this Court’s past interpretation of the rights of the family when adjudging the custody and parental rights of Ms. Mendoza and Mr. Herrera. This Court has held that in custody proceedings, as with all matters relating to minors, courts are to prioritize the best interests of the child and to consider her preferences to the extent appropriate based on age and cognitive development.145 At each jurisdictional level, the Mekinés courts complied with this fundamental guidance.146 While Petitioners may contend that the Supreme Court’s decision to grant custody to Mr. Herrera was prima facie evidence of the State’s inadequate assessment of Helena’s preferences based on the child’s statements describing the comfort of her mother’s home and positive to neutral experience during the initiation ritual, such a stance stops well short of fully acknowledging this Court’s articulated understanding of this judicial obligation.147 Indeed, Helena’s young age, limited education, and relatively inconsistent articulations of her own preferences support the Court’s decision to transfer custody of the child to Mr. Herrera, whose home offers a comparatively safe and enriching environment and who has not demonstrated conduct constituting physical and psychological endangerment in contrast to Ms. Mendoza.148 Accordingly, the Supreme Court’s custodial decision should stand. Furthermore, it should be noted that the decision in question here aligns with the Convention’s broader mandates regarding the rights of the family as they have been interpreted by this Court. Specifically, the Supreme Court appropriately weighed the “specific parental behaviors and their negative impact on the well-being and development of the child,”149 while 145 Juridical Condition, p. 7; Atala Riffo and Daughters v. Chile. 146 Clarifications, para. 28. 147 Problem, para. 38; Clarifications, para. 22. 148 Problem, para. 37; Clarifications, para. 38. 149 Atala Riffo and Daughters v. Chile, para. 109. 201 41 “favor[ing], in the broadest possible terms, the development and strength of the family unit” and prioritizing the best interests of the child above all else.150 In the instant case, the Supreme Court carefully considered the concrete decisions made by Ms. Mendoza to allow her daughter to go through a harmful initiation process to be dispositive in the custody decision.151 Despite the intolerant language used by government and judicial actors at certain points during the proceedings,152 the Supreme Court’s central focus was on Helena’s holistic well-being in light of her mother’s tangibly harmful actions.153 This stands in direct contrast to instances where bigoted perceptions and stereotypes served as the sole basis for a loss of custody.154 Indeed, the Supreme Court’s decision to revoke Ms. Mendoza’s custodial rights did not turn on her sexual orientation alone, but rather the appellate court’s failure to follow appropriate case law mandating holistic consideration of the best interests of the child.155 A significant factor within this assessment was Helena’s potential exposure to violence.156 Furthermore, the Mekinesian courts promoted the strength of the family unit by granting custody to Mr. Herrera instead of a foster family or public institution, permitting Ms. Mendoza visitation rights, and demonstrating a willingness to place Helena into the care of her mother and Ms. Reis.157 V. REQUEST FOR RELIEF For the foregoing reasons, the Respondent State of Mekinés respectfully requests this Court to: 1. Decline to adjudge on any claims under of violation under the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance (CIRDI). 150 Atala Riffo and Daughters v. Chile, para. 169. 151 Problem, para. 37. 152 See Clarifications, para. 38. 153 Problem, para. 37. 154 See, e.g., Atala Riffo and Daughters v. Chile. 155 Problem, para. 37. 156 Id.; Clarifications, para. 38. 157 Problem, para. 35; Clarifications, para. 33. 201 42 2. Declare the petition inadmissible based on the conclusions in IV.A and B. 3. In the alternative, adjudge that Petitioners’ rights were not infringed upon by Mekinesian courts, and the custody determination by the Supreme Court was proper; and 4. Determine that the State is not responsible for violations under Articles 8, 12, 17, 19, and 24 of the Convention and Articles 2, 3, and 4 of the CIRDI; and 5. Declare that Mekinés has fulfilled or is in the process of fulfilling its obligations under the Convention and CIRDI. Respectfully, The Respondent State of Mekinés