organización de los estados americanos

222 Pages·2017·2.44 MB·Spanish

by  Mari Souza Gomes

ORGANIZATION OF AMERICAN STATES

INTER-AMERICAN JURIDICAL COMMITTEE

91st Regular Session OEA/Ser. Q
7-16 August 2017 CJI/doc. 551/17
Rio de Janeiro, Brazil 16 August 2017
Original: Spanish

ANNUAL REPORT
OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
TO THE GENERAL ASSEMBLY

2017

General Secretariat
Organization of American States
www.oas.org/cji
[email protected]

iii

EXPLANATORY NOTE

Until 1990, the OAS General Secretariat published the “Final Acts” and “Annual Reports of
the Inter-American Juridical Committee” under the series classified as “Reports and
Recommendations”. In 1997, the Department of International Law of the Secretariat for Legal Affairs
began to publish those documents under the title “Annual Report of the Inter-American Juridical
Committee to the General Assembly.”
According to the “Classification Manual for the OAS official records series”, the Inter-
American Juridical Committee is assigned the classification code OEA/Ser. Q, followed by CJI, to
signify documents issued by this body (see attached lists of Resolutions and documents).
iv

TABLE OF CONTENTS
Page

EXPLANATORY NOTE III
TABLE OF CONTENTS IV
RESOLUTIONS ADOPTED BY THE INTER-AMERICAN JURIDICAL COMMITTEE V
DOCUMENTS INCLUDED IN THE ANNUAL REPORT VI
INTRODUCTION 1
CHAPTER I 5
1. THE INTER-AMERICAN LEGAL COMMITTEE: ITS ORIGIN, LEGAL BASES, STRUCTURE AND PURPOSES 7
2. PERIOD COVERED BY THE ANNUAL REPORT OF THE INTER-AMERICAN JURIDICAL COMMITTEE 8
A. NINETIETH REGULAR SESSION 8
B. NINETIETH FIRST REGULAR SESSION 9
CHAPTER II 15
TOPICS DISCUSSED BY THE INTER-AMERICAN JURIDICAL COMMITTEE AT THE
REGULAR SESSIONS HELD IN 2017 17
THEMES UNDER CONSIDERATION 17
1. IMMUNITY OF INTERNATIONAL ORGANIZATIONS 19
2. LAW APPLICABLE TO INTERNATIONAL CONTRACTS 35
3. REPRESENTATIVE DEMOCRACY 47
4. GUIDE FOR THE APPLICATION OF THE PRINCIPLE OF CONVENTIONALITY 71
5. ON-LINE ARBITRATION ARISING FROM CROSS-BORDER CONSUMER TRANSACTIONS 78
6. BINDING AND NON-BINDING AGREEMENTS 95
7. VALIDITY OF FOREIGN JUDICIAL DECISIONS IN LIGHT OF THE INTER-AMERICAN CONVENTION ON
EXTRATERRITORIAL VALIDITY OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS 118
8. IMMUNITY OF STATES 119
9. PROTECTION OF CULTURAL HERITAGE ASSETS 129
10. CONSCIOUS AND EFFECTIVE REGULATION OF BUSINESS IN THE AREA OF HUMAN RIGHTS 141
OTHER TOPICS 158
1. REFLECTION ON THE WORK OF THE INTER-AMERICAN JURIDICAL COMMITTEE: COMPILATION OF
TOPICS OF PUBLIC AND PRIVATE INTERNATIONAL LAW 158
2. GUIDELINES ON THE PROTECTION OF STATELESS PERSONS 167
3. PRIVACY AND PROTECTION OF PERSONAL DATA 171
CHAPTER III 185
OTHER ACTIVITIES 187
ACTIVITIES CARRIED OUT BY THE INTER-AMERICAN JURIDICAL COMMITTEE DURING 2017 187
A. PRESENTATIONS OF MEMBERS OF THE COMMITTEE IN OTHER FORA 187
B. COURSE OF INTERNATIONAL LAW 201
C. RELATIONS AND COOPERATION WITH OTHER INTER-AMERICAN BODIES AND WITH REGIONAL
AND GLOBAL ORGANIZATIONS 206
INDEXES 211
ONOMASTIC INDEX 213
SUBJECT INDEX 215
v

RESOLUTIONS ADOPTED BY THE INTER-AMERICAN JURIDICAL COMMITTEE
Page

CJI/RES. 229 (LXXXIX-O/16)
AGENDA FOR THE NINETIETH REGULAR SESSION OF THE INTER-AMERICAN
JURIDICAL COMMITTEE 8
(RIO DE JANEIRO, BRAZIL, AS OF 6 MARCH, 2017) 8
CJI/RES. 228 (LXXXIX-O/16)
DATE AND VENUE OF THE NINETIETH REGULAR SESSION OF THE 9
CJI/RES. 231 (XCI-O/17)
AGENDA FOR THE NINETY-FIRST REGULAR SESSION OF THE INTER-
AMERICAN JURIDICAL COMMITTEE 10
CJI/RES. 234 (XCI-O/17) 11
DATE AND VENUE OF THE NINETY-SECOND REGULAR SESSION OF THE INTER-
AMERICAN JURIDICAL COMMITTEE 11
CJI/RES. 235 (XCI-O/17)
AGENDA FOR THE NINETY-SECOND REGULAR SESSION OF THE INTER-
AMERICAN JURIDICAL COMMITTEE 12
CJI/RES. 236 (XCI-O/17)
TRIBUTE TO DOCTOR ELIZABETH VILLALTA VIZCARRA 13
CJI/RES. 237 (XCI-O/17)
HOMAGE PAID TO DOCTOR MIGUEL ANÍBAL PICHARDO OLIVIER 14
CJI/RES. 233 (XCI-O/17) 132
CULTURAL HERITAGE 132
CJI/RES. 232 (XCI-O/17) 143
CONSCIOUS AND EFFECTIVE REGULATIONS FOR COMPANIES IN THE SPHERE
OF HUMAN RIGHTS 143
vi

DOCUMENTS INCLUDED IN THE ANNUAL REPORT
Page

CJI/DOC.545/17 REV.1
IMMUNITIES OF INTERNATIONAL ORGANIZATIONS: DOCUMENT FOR COMMENTS 26
(PRESENTED BY DR. JOEL HERNÁNDEZ GARCÍA) 26
CJI/DOC. 524/17 59
GUIDE FOR A REFLECTION OF THE INTER-AMERICAN JURIDICAL COMMITTEE ON
“REPRESENTATIVE DEMOCRACY IN THE AMERICAS” AND THE REPORTS OF THE
RAPPORTEUR 59
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 59
CJI/DOC. 537/17
REPRESENTATIVE DEMOCRACY IN THE AMERICAS
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 68
CJI/DOC.523/17 CORR.1
ON-LINE ARBITRATION AND CONSUMER PROTECTION IN THE AMERICAS 81
(PRESENTED BY DR. JOSÉ ANTONIO MORENO RODRÍGUEZ) 81
CJI/DOC.544/17
ONLINE ARBITRATION ARISING FROM CROSS-BORDER CONSUMER TRANSACTIONS
(PRESENTED BY DR. ANA ELIZABETH VILLALTA VIZCARRA) 83
DDI/DOC.7/17
ON-LINE ARBITRATION ARISING FROM CROSS-BORDER CONSUMER TRANSACTIONS:
COMPILATION OF RELEVANT WORK BY INTERNATIONAL ORGANIZATIONS AND
OTHER ENTITIES 84
CJI/DOC.542/17 CORR.1
PRELIMINARY REPORT ON BINDING AND NON-BINDING AGREEMENTS 98
(PRESENTED BY DR. DUNCAN B. HOLLIS) 98
CJI/DOC.530/17
IMMUNITY OF JURISDICTION OF STATES: SCOPE AND VALIDITY
(PRESENTED BY DR. CARLOS MATA PRATES) 124
CJI/DOC.527/17 REV. 2
INTER-AMERICAN JURIDICAL COMMITTEE REPORT: CULTURAL HERITAGE ASSETS 133
CJI/DOC.522/17 REV.2 144
INTER-AMERICAN JURIDICAL COMMITTEE REPORT: CONSCIOUS AND EFFECTIVE
REGULATION OF BUSINESS IN THE AREA OF HUMAN RIGHTS 144
CJI/DOC.531/17
REFLECTIONS ON THE WORK OF THE INTER-AMERICAN JURIDICAL COMMITTEE:
A COMPILATION OF THEMES OF INTEREST 165
(PRESENTED BY DR. RUTH STELLA CORREA PALACIO) 165
CJI/DOC.529/17
GUIDELINES FOR THE PROTECTION OF STATELESS PERSONS: UPDATE 170
(PRESENTED BY DR. CARLOS MATA PRATES) 170
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CJI/DOC.541/17 CORR.1
PRIVACY AND PROTECTION OF PERSONAL DATA
(PRESENTED BY DR. ANA ELIZABETH VILLALTA VIZCARRA) 172
CJI/DOC.538/17
REPORT OF THE CHAIRMAN OF THE INTER-AMERICAN JURIDICAL COMMITTEE
TO THE OAS GENERAL ASSEMBLY 188
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 188
CJI/DOC.536/17
REPORT OF THE PRESIDENT OF THE INTERAMERICAN JURIDICAL COMMITTEE
TO THE PERMANENT COUNCIL 189
(WASHINGTON, D.C., 19 APRIL 2017)
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 189
CJI/DOC.539/17
REPORT THE CHAIRMAN OF THE INTER-AMERICAN JURIDICAL COMMITTEE, TO THE
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS - CAJP 192
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 192
DDI/DOC.8/17
MINUTES - PRESENTATION OF THE ANNUAL REPORT TO THE COMMITTEE ON
JURIDICAL AND POLITICAL AFFAIRS (DOCUMENT ELABORATED BY THE
DEPARTMENT OF INTERNATIONAL LAW) 195
CJI/DOC.543/17
REPORT OF THE CHAIRMAN OF THE INTER-AMERICAN JURIDICAL COMMITTEE,
TO THE INTERNATIONAL LAW COMMISSION OF THE UNITED NATIONS
(PRESENTED BY DR. HERNÁN SALINAS BURGOS) 198
* * *
INTRODUCTION
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- 3 -

The Inter-American Juridical Committee is honored to submit to the General Assembly of
the Organization of American States its Annual Report on the activities carried out during the year
2017, in accordance with the terms of Article 91.f of the Charter of the Organization of American
States and Article 13 of its Statutes, and with the instructions contained in General Assembly
Resolutions dealing with the preparation of annual reports by the organs, agencies, and entities of
the Organization, such as resolutions AG/RES. 2806 (XLIII-O/13), AG/RES. 2849 (XLIV-O/14),
AG/RES. 2873 (XLV-O/15) and AG/RES. 2909 (XLVII-O/17), all of which were approved over
the past years.
In 2017, the Inter-American Juridical Committee held two working meetings. The first
meeting, its 90th Regular Session, took place March 6-10; while the second meeting, its 91st
Regular Session, took place August 7-16, both at the headquarters building in Rio de Janeiro,
Brazil.
On these occasions, the plenary Committee approved two reports in response to the mandates
issued by the OAS General Assembly: “Conscious and Effective Regulation of Business in the
Area of Human Rights” (CJI/doc.522/17 rev. 2); and “Cultural Heritage Assets” (CJI/doc.527/17
rev. 2.). In the first of these reports, the Committee puts forward a collection of best practices,
legislation and legal precedents dealing with the subject matter and proposes alternatives aimed at
advancing in conscious and effective regulation of businesses. As for the protection of cultural
assets report, the Committee proposes consolidating national legislation, urges ratification of the
1970 UNESCO and 1976 OAS Conventions, and calls on States to set up cooperation mechanisms
to aid in the implementation thereof, based on analysis of available regional as well as universal
instruments. There was also a pronouncement issued by the Committee on the subject of
jurisdictional immunity of States and statelessness.
During the period encompassed by this report, the Committee approved consideration of two
new topics, which were added to the agenda sua sponte: “validity of foreign judicial decisions in
light of the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and
Arbitral Awards,” and “binding and non-binding agreements,” the latter topic arising from an
exchange between legal counsel of ministries of foreign affairs, held in October 2016.
Lastly, the plenary of the Juridical Committee decided to keep consideration of the following
topics on the agenda: immunity of international organizations; law applicable to international
contracts; representative democracy; and, guide for the application of the principle of
conventionality.
It must be noted that at its last working meeting the CJI was pleased with the decision of the
OAS General Assembly to request the Permanent Council to grant due consideration of its most
recent resolutions and reports on the subject of cultural heritage assets; conscious and effective
regulation of business in the area of human rights; and electronic warehouse receipts for
agricultural products.
This Annual Report is about the studies conducted on the aforementioned topics and is
divided into three chapters. The first chapter explains the origins, legal basis and the structure of
the Inter-American Juridical Committee and provides an account of the meetings, which took place
over the year. The second chapter describes the topics fleshed out by the Juridical Committee and
includes the texts of the approved resolutions and specific documents. Lastly, the third chapter
recounts the activities carried out by the Committee and its members over the past year. As is
customary, a detailed list of the approved resolutions and documents are attached to the Report as
an annex.
The Annual Report of 2017 has been approved as drafted by Dr. Hernán Salinas Burgos in
his capacity as Chair of the Inter-American Juridical Committee.
All this information may be accessed at the webpage of the Inter-American Juridical at:
http://www.oas.org/en/sla/iajc/inter-american_juridical_committee.asp