OR ATTORNEYS GENERAL OF THE AMERICAS REMJA/doc.6/97
December 1-3, 1997 19 November 1997
Buenos Aires, Argentina Original: Spanish
JURIDICAL AND JUDICIAL COOPERATION IN THE AMERICAS
Main Courses of Action
(Document presented by the General Secretariat/Secretariat for Legal Affairs)
ORGANIZATION OF AMERICAN STATES
JURIDICAL AND JUDICIAL COOPERATION IN THE AMERICAS:
Main Courses of Action
Secretariat for Legal Affairs
Page NOTE vii
JURIDICAL AND JUDICIAL COOPERATION IN THE AMERICAS
General Considerations 1
INTER-AMERICAN PROVISIONS FOR JURIDICAL AND JUDICIAL COOPERATION
I. Conventions on Judicial Cooperation 5
II. Other Relevant Conventions 10
INTER-AMERICAN PROVISIONS CONCERNING JURIDICAL AND JUDICIAL COOPERATION
Background information for collective reflection 13
THE CENTRAL AUTHORITIES: A MECHANISM FOR JURIDICAL AND JUDICIAL COOPERATION 17
OTHER COOPERATION MODALITIES 25
This document is an abridged version of the document "Juridical and Judicial Cooperation in the Americas", prepared by the Secretariat for Legal Affairs, October 1997.
The General Secretariat of the Organization of American States is making this document, prepared by the Under Secretary for Legal Affairs, available to the inter-American community. It contains comments on the main provisions with respect to juridical and judicial cooperation adopted within the framework of the OAS.
As indicated in the OAS Charter, and reaffirmed in the "Declaration of Panama on the Inter-American Contribution to the Development and Codification of International Law" [AG/DEC. 12 (XXVI-O/96)], international law is a set of rules governing the conduct of states in their reciprocal relations. In that context, the treaties adopted within the Organization constitute a valuable asset that must be preserved, developed, and fully shared.
This document provides information concerning the content and current status of signatures, ratifications, and applicability of inter-American treaties on juridical and judicial cooperation, which has a fundamental role to play in making these provisions effective and providing a guarantee of progress towards shared objectives agreed upon by the member states.
The Secretary General, César Gaviria, has stated on numerous occasions that the OAS offers the comparative advantage of constituting a natural forum for the member states and their national authorities, on an equal footing, in which to negotiate, define, modify, and strengthen provisions governing inter-American relations and increase cooperation among our countries.
Accordingly, we hope that this document will help national authorities to evaluate the current status of inter-American provisions for juridical and judicial cooperation in order to determine if they are in tune with the new realities and challenges facing the Hemisphere, and to strengthen the mechanisms for heightening awareness about them both domestically and internationally. It is also expected to help identify those areas where new provisions and specific mechanisms for cooperation need to be created to contend with the new challenges and requirements of a modern, reliable, and efficient administration of justice in the Americas.
CHAPTER ONE JURIDICAL AND JUDICIAL COOPERATION IN THE AMERICAS: General Considerations
The changes that have occurred in the international environment in recent years, particularly derived from the end of the Cold War and the East-West confrontation, the disappearance of authoritarianism in Latin America, the resurgence and continuous strengthening of democratic regimes in the Americas and the growth of trade and international financial flows have made it evident that the development of law and juridical and judicial cooperation constitute elements necessary to promote integration and various other shared objectives that the countries of the Americas have agreed to pursue.
The interdependence that has been created between countries, particularly as a result of the growing economic integration of states; the need to protect a shared environment and promote sustainable development, advances in the areas of telecommunications, science, and technology; migratory displacements; the fight against drug trafficking, corruption, terrorism, arms trafficking and organized crime, have created the conditions necessary for greater coordination of purposes, policies, and actions among states.
This interdependence and conjunction of individual and universal interests and concerns as expressed by the countries provide new opportunities for joint action, as well as for potential disputes, all of which call for the improvement and development of law in the Americas and broader, more efficient, and more solid cooperation among the states.
The new hemispheric and world context has led to recognition that it is necessary, now more than in the past, to create and perfect juridical instruments that will contribute to more harmonious and coherent action in pursuit of the integral development of our peoples.
In view of the importance of this subject area, and the need to bring the OAS's work up to date in this field, the Organization began a few years ago a serious and profound process of modernization in the content, scope, and modalities for cooperation.
The Washington Protocol reforming the OAS Charter, adopted in 1992, reaffirmed that cooperation is one of the essential aims of the inter-American endeavor. The Managua Protocol, approved in 1993, redefined the Organization's mission in this field and established the Inter-American Council for Integral Development (CIDI) as the body for "coordinating policies, programs, and action with respect to cooperation for integral development".
At the Summit of the Americas, held in Miami in late 1994, the heads of state and government defined the priorities for joint action in the years ahead and assigned the OAS a leading role in the development of the Agenda they adopted in a Declaration of Principles and a Plan of Action. In 1995, through the Declaration of Montrouis, "A New Vision of the OAS," the General Assembly set out the areas in which the Miami Summit had requested the participation of our Organization.
Similarly, and after a wide-ranging and careful process of examination based mainly on the proposals presented by the Secretary General and the member states, the General Secretariat was restructured in order to improve, inter alia, the emphasis on, and fulfillment of its responsibilities in the area of cooperation. Within that context, it was decided to reorganize and to concentrate within the Secretariat for Legal Affairs the support provided to bodies in the development of international law, the promotion and execution of hemispheric juridical cooperation programs or activities, and the dissemination of information on juridical issues under discussion within the Organization.
Within the framework of the OAS, 63 inter-American conventions have been discussed and adopted on numerous issues, such as human rights, deregulation of payment instruments, the adoption of minors, arbitration, asylum, extradition, commercial transportation, the settlement of disputes between states, commercial arbitration, and the prevention of violence against women. Out of all the conventions adopted, 30 were related to the field of juridical and judicial cooperation.
Nonetheless, some of these conventions are not in force throughout the hemisphere, since the process of their ratification, under the juridical systems of each country, has still not been completed.
The reasons for this situation are extremely varied. Nonetheless, the adoption of these conventions is only the start of a long process that even the OAS frequently neglects, wasting the enormous capital and knowledge accumulated in the stages of preparation, negotiation, and adoption of a specific legal instrument.
Perfecting the inter-American juridical system by promoting the ratification of juridical instruments to consolidate it therefore constitutes perhaps the greatest and most important challenge for juridical cooperation in the Hemisphere.
The decision to ratify a juridical instrument is up to each state. However, governments are in a position to promote expression of the collective political will to advance towards this aim, and the OAS Secretariat can provide assistance to the countries during the process between signature and ratification of the agreements.
To that end, a more systematic process of collective reflection should be promoted for such important issues as the identification of areas for juridical and judicial cooperation where inter-American law requires greater juridical development or adaptation. Methods and mechanisms should be identified to enable countries in the Hemisphere to incorporate and apply more effectively and efficiently the provisions of the inter-American juridical system and to build on and strengthen them in the context of the various sub-regional integration structures that the Hemisphere has been creating and consolidating.
This document is the result of a joint effort by different units of the Secretariat of Legal Affairs and covers the various aspects that need to be taken into account in structuring and fortifying a new and up-to-date framework for inter-American cooperation in the juridical and judicial field.
The document also includes general comments on other modalities for juridical and judicial cooperation. Subsequently, a preliminary systematization of inter-American treaties in the field of juridical and judicial cooperation is included. Through graphics and comparative tables, it shows the main areas codified under inter-American law, a timeline of their development, the status of signatures and ratifications of the related juridical instruments and their current applicability. In the conclusion, a number of suggestions have been included on the role the OAS could play in fulfilling the mandates for juridical and judicial cooperation.
CHAPTER TWO INTER-AMERICAN PROVISIONS FOR JURIDICAL AND JUDICIAL COOPERATION
There are numerous inter-American conventions on judicial cooperation. Consequently, it is possible only to give a brief description of their main characteristics and content. These conventions can be divided into those whose main purpose is the establishment of judicial cooperation mechanisms, and those whose application requires cooperation mechanisms. In the first group we have conventions in the criminal field, such as extradition, mutual assistance, execution of foreign sentences, and conventions on trial procedures. In the second group we have conventions on minors, terrorism, corruption, asylum, and illicit trafficking in firearms.
I. Conventions on Judicial Cooperation 1. Inter-American Convention on Extradition Signed in Caracas, Venezuela on February 25, 1981, at the Special Inter-American Conference on Extradition
Under this Convention, any request for extradition obliges member states to turn over to other states parties to the Convention persons sought for prosecution, as well as those who have been prosecuted, declared guilty, or sentenced with penalties depriving them of their freedom.
The crime must have been committed within the territory of the requesting state. If the crime has been committed outside of the requesting state, the state must have jurisdiction. In addition, it is required that the crime be sanctioned, at the time of the infraction, with a minimum penalty of two years deprivation of freedom under the legislation of the requesting state as well as the state receiving the request. If the extradition is requested for execution of a sentence of deprivation of freedom, the portion of his sentence still to be served must be no less than six months.
2. Inter-American Convention on Mutual Assistance in Criminal Matters Adopted in Nassau, The Bahamas, on May 23, 1992
This convention establishes provisions under which the contracting parties undertake to provide mutual assistance in criminal matters. Such assistance is based on requests for cooperation between authorities responsible for investigation and prosecution in the state receiving the request. The assistance may include notification of rulings and sentences; the taking of testimony or statements from specified persons or witnesses; attachment and seizure of assets; inspections and confiscations; examining objects and places; exhibiting juridical documents; transmitting documents, reports, information, and evidence; transferring prisoners; and other procedures. The assistance will be provided in all cases punishable with penalties of one year of prison or more, in respect of crimes subject to the jurisdiction of the requesting state at the time of the request for assistance.
3. Optional Protocol to the Inter-American Convention on Mutual Assistance in Criminal Matters Adopted in Managua, Nicaragua, June 11, 1993
Under this Protocol, the states parties will not exercise the right stipulated in the Convention on Mutual Assistance to deny requests for assistance when the act specified corresponds to a tax violation. States receiving requests will not deny assistance requiring the adoption of the measures referred to in Article 5 of the Convention (attachment and seizure of assets, inspections and confiscations) in the case that the act specified in the request corresponds to a tax violation of the same kind as covered by the legislation of the state receiving the request.
4. Inter-American Convention on Serving Criminal Sentences Abroad Adopted in Managua, Nicaragua, June 9, 1993
The objective of this Convention is to enable sentenced persons to serve their sentences in the state of their nationality and thus contribute to the broadest cooperation between the states parties with respect to the transfer of sentenced persons.
Application of the Convention is subject to the following conditions: the sentence must be final and definitive; the sentence to be executed must not be the death penalty; the period of time to be served under the sentence, at the time of the request, must be at least six months; the sentenced persons must be nationals of the receiving state and must expressly consent to the transfer; the act for which the person has been sentenced must also constitute a crime in the receiving state and application of the sentence must not be contrary to the internal public policy of the receiving state.
5. Inter-American Convention on the Taking of Evidence Abroad Signed in Panama, January 30, 1975, at the First Inter-American Specialized Conference on Private International Law
This Convention applies to letters rogatory addressed by judicial authorities of one state party to those of another and issuing from civil or commercial judicial proceedings for the purpose of receiving or obtaining evidence or reports. However, the states parties may issue a declaration extending the provisions of the Convention to the processing of letters rogatory in matters of criminal, labor, administrative law, arbitration rulings, or other areas subject to special jurisdiction.
The letters rogatory may be transmitted through judicial channels, through the intermediary of consular officials or diplomatic agents or by the designated central authority. It must contain all the necessary information for compliance with the Convention.
6. Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad Signed in La Paz, Bolivia, May 24, 1984, at the Third Inter-American Specialized Conference on Private International Law
This Protocol requires that the letters rogatory requesting evidence be prepared in accordance with Form A attached to this instrument, and be accompanied by the documents mentioned in the original Convention, and a certificate of execution, worded in accordance with text B in the Annex to the Protocol. The states parties will act on letters rogatory requesting the exhibition and transcription of documents when the specific requirements have been met, unless it has been declared that the connection between the evidence or information requested and the pending proceedings must first be identified.
7. Inter-American Convention on Letters Rogatory Signed in Panama, January 30, 1975 at the First Inter-American Specialized Conference on Private International Law
This Convention applies to letters rogatory in connection with civil or commercial legal actions or proceedings from the judicial bodies of one of the states parties, for the purpose of: (a) purely procedural acts, such as notifications, citations, or foreign summons; (b) obtaining evidence and information. It will not apply to any letters rogatory in respect of procedural acts other than those mentioned, especially acts entailing coactive execution. However, the states parties may declare that they are extending the provisions of the Convention to the processing of letters rogatory to matters of criminal, labor, or administrative law, or arbitration rulings or other matters subject to special jurisdiction.
8. Additional Protocol to the Inter-American Convention on Letters Rogatory Signed in Montevideo, Uruguay, on May 8, 1979 at the Second Inter-American Specialized Conference on Private International Law
This Protocol applies to procedural acts enumerated in the Convention, which include the communication of procedural acts or facts as well as requests for information from judicial bodies in a contracting party to those in another, when these acts are the subject of an letters rogatory transmitted by the Central Authority of the requesting state or the state receiving the request.
9. Inter-American Convention on Legal Regimes of Powers of Attorney To be Used Abroad Signed in Panama, January 30, 1975 at the First Inter-American Specialized Conference on Private International Law
Power of attorney duly granted in one of the states parties to this Convention will be valid in any of the other states parties. The formalities will be subject to the laws of the state where power of attorney is granted, unless the party granting power of attorney prefers to submit to the law of the state in which the power of attorney will be exercised. In any case, if the law of this latter state requires formalities essential for validation of the power of attorney, that law will apply. When the special formality is unknown in the state where the power of attorney is granted, it will be sufficient to comply with the provisions of the Convention. The effects and the exercise of the power of attorney are subject to the law of the state where it is exercised. For all powers of attorney the official legalizing them must certify or attest to the information requested under the Convention.
10. Protocol on Uniformity of Powers of Attorney Which are to be Utilized Abroad Opened for signature at the Pan American Union, February 17, 1940
This Protocol establishes the rules that must be observed when power of attorney is to be exercised abroad. Such power of attorney may take various forms: it may be established in the individual's name; in the name of a third party or in the name of a legal entity. The certification by the official authorizing the power of attorney can be revoked only by proof to the contrary, produced by the party disputing its accuracy. The exercise of acts of ownership, general power of attorney to administer assets, and for litigation, collection, or administrative or judicial proceedings, must conform to certain specific requirements. The powers granted will be valid in any other country adhering to the rules formulated in this Protocol, provided that they were also legalized in accordance with the special rules on legalization. Powers granted in a foreign country do not need to be registered in specific offices, without prejudice to the practice of registration when the law requires it as a special formality in determined cases.
11. Inter-American Convention on Execution of Precautionary Measures Signed in Montevideo, Uruguay, May 8, 1979, at the Second Inter-American Specialized Conference on Private International Law
For the purposes of this Convention, judicial authorities in the states parties will comply with the precautionary measures decreed by judges or tribunals of another state party for the purpose of guaranteeing the safety of persons (such as the custody of minor children) or property (such as attachment and seizure or claim registration). Although the issuance of the precautionary measure is governed by the laws and judges of the venue for the proceedings, execution of the precautionary measure, as well as security or guarantees, will be ruled on by the judges where execution is requested.
12. Inter-American Convention on Proof of and Information on Foreign Law Signed at Montevideo, Uruguay, May 8, 1979 at the Second Inter-American Specialized Conference on Private International Law
The aim of this Convention is to establish rules on international cooperation between states parties in obtaining evidence and information in respect of the law of each state. The authorities of each of the states parties will provide authorities in the other states parties, at their request, with evidence or information on the text, applicability, meaning and legal scope of that country's law. This cooperation will be provided in respect of any of the normal means of proof specified both in the law of the requesting state and in the law of the state receiving the request.
13. Inter-American Convention on International Commercial Arbitration Signed in Panama, January 30, 1975, at the First Inter-American Specialized Conference on Private International Law
This Convention establishes an agreement among the states parties in which they undertake to submit to arbitration differences that may arise, or that have arisen between them with regard to a trade or business matter.
Arbitration rulings that are not impugnable under the applicable law or procedural rule will be treated as enforceable judicial sentences. Execution or recognition of such rulings, like sentences issued by ordinary national or foreign courts, can be required in accordance with the procedural laws of the country where executed, and such provisions as may exist in international treaties.
14. Inter-American Convention on the Extraterritorial Validity of foreign Judgments and Arbitral Awards Signed in Montevideo, Uruguay, on May 8, 1979, at the Second Inter-American Specialized Conference on Private International Law
This Convention applies to judicial sentences and arbitration rulings in civil, commercial, or labor cases, unless, at the time of ratification, the states parties expressly indicate a reserve limiting or extending it. This also applies to arbitration decisions in all matters not covered by the Inter-American Convention on International Commercial Arbitration. These sentences, arbitration decisions, and foreign judicial rulings will have extraterritorial effect in the states parties if they meet the stipulated conditions.
15. Inter-American Convention on Jurisdiction in the International Sphere For the Extraterritorial Validity of Foreign Judgments Signed at La Paz, on May 4, 1984, at the Third Inter-American Specialized Conference on Private International Law
This Convention sets out the conditions under which the international jurisdictional requirements for ruling on the extraterritorial effect of foreign sentences are considered to have been met. It establishes the rules applicable to personal actions concerning property, real actions in respect of corporate movable assets, real actions in respect of immovable property, actions derived from international commercial contracts, counterclaims, and actions in which jurisdiction was declared to avoid denial of justice.