García Escobar, Gabriela

Preferred name

Official Name

García Escobar, Gabriela

Translated Name

gabgarcía

Main Affiliation

ORCID

0000-0002-7030-9543

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Las decisiones judiciales como fuente jurídica principal para la creación de nuevos derechos por parte de la Corte Interamericana de Derechos Humanos
(Asociacion Civil de Estudios Superiores (ACES) Universidad Austra, 2025)
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Norms versus Interpretations: Human Rights Universality Revisited
(2023)
<jats:title>Abstract</jats:title> <jats:p>Debates on human rights universality frame universality according to an anthropological view called Western universalism and consider that “cultural relativism” is equivalent to any other framework. Thus, the discussion on this topic has been reduced to who is the rights-holder and the concept of human rights itself. There is a third approach to universality that must be addressed: the universality of interpretations. Most critics of human rights universality do not contest internationally agreed human rights norms (as established in treaties). Rather, they react against interpretations or standards as have been developed by human rights mechanisms. Accordingly, this paper explores three positions that have been developed around this notion: flexible Westerns, dialogical perspectives, and bottom-up approaches.</jats:p>
Scopus© Citations 2 35 2
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Claves para la resolución del caso “Beatriz”: el estatus jurídico del aborto y la protección del no nacido
(El Derecho, 2024)
;
José Gilberto Solís Jiménez
34
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Plurality as the core of human rights universality: Rediscovering the spirit of the Universal Declaration of Human Rights of 1948 through the right to self-determination
(2024-02-27)
Scopus© Citations 1 42
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The Normative Value of Human Rights Treaty Bodies’ Interpretations at the International Court of Justice
(2023)
<jats:p>Although the International Court of Justice (ICJ) is not a human rights court, it has recently addressed human rights issues, which has prompted interaction with the opinions of human rights mechanisms. This article will analyze the normative value of human rights treaty monitoring bodies’ interpretations recognized by the ICJ in three cases of its jurisprudence: the Wall Advisory Opinion, the case of Ahmadou Sadio Diallo, and the case of Qatar v. the United Arab Emirates. This analysis indicates that the ICJ has ascribed great normative weight to these interpretations, but it has been reluctant to adopt their views without conducting its own interpretative assessment of the norms. In its most recent case, the ICJ took an approach that completely departs from the interpretation adopted by the relevant treaty body. This article argues that such a position must be considered in light of the growing criticism that treaty bodies are facing about the quality of their reasonings and command of general international law. Accordingly, treaty bodies could enhance their legitimacy by learning from the ICJ’s approach to treaty interpretation, and in addition, could take advantage of the positive aspects of their non-binding character to develop meta-juridical discussions. </jats:p>
38
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LAS PARADOJAS DE LA GESTACIÓN SUBROGADA EN MÉXICO: UN ANÁLISIS DEL RAZONAMIENTO DE LA SUPREMA CORTE DE JUSTICIA A LA LUZ DE LOS DERECHOS HUMANOS
(2024)
<jats:p>Las experiencias que se recogen de los países donde se ha legalizado la gestación subrogada están repletas de abusos hacia las mujeres gestantes y los niños. Sin embargo, los defensores de este mercado, entre ellos el máximo órgano judicial de México, la Suprema Corte de Justicia de la Nación (SCJN), siguen optando por una visión optimista y contractualista, basada en el consentimiento. Por ello, el objetivo de este artículo es analizar esta postura a la luz del Derecho Internacional de los Derechos Humanos y de la experiencia práctica de la gestación subrogada. Para esto, se estudiarán sus implicaciones jurídicas en relación con la trata de personas y la prohibición de la venta de niños. De este análisis se desprende, que el optimismo de la SCJN, parte de presuposiciones no corroborables y de un estudio superficial y parcial de los derechos humanos implicados en esta práctica.</jats:p>
1
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Abortion from an International Perspective after the Dobbs case
(2024)
<jats:p>The American Supreme Court of Justice recently overturned the precedents that legalized abortion in the Dobbs v. Jackson Women’s Health Organization case. This article analyzes whether this decision is consistent with the current status of abortion as established in International Human Rights Law (IHRL), according to its classical sources (treaties and customary law). Since no treaty includes a right to abortion and there is no consistent practice among states to legalize abortion, various soft law instruments are discussed to clarify the consensus on this issue. These instruments include the agreements reached at the World Population Conferences, the Fourth World Conference on Women of 1995, and the pronouncements and case law of human rights mechanisms (treaty monitoring bodies and regional courts). This analysis shows that the arguments and conclusions in the Dobbs case are consistent with what states have agreed to internationally on the matter.</jats:p>
14
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Fragmentation in the European and Inter-American Human Rights Courts Regarding the Scope of Religious Autonomy: An Analysis of the Use of Sources and Methodologies
(2024)
<jats:title>ABSTRACT</jats:title> <jats:p>Fragmentation in International Human Rights Law (IHRL) may affect the universality of human rights norms and their legitimacy. This article analyses a recent case of contradiction between the European and the Inter-American Court of Human Rights (IACHR) regarding employment contracts of religious education teachers and the scope of religious autonomy. These courts reached contradictory conclusions on key substantive issues because they used different ways of framing the issue at stake, and different legal sources and interpretative methodologies. The analysis reveals that while the European Court of Human Rights (ECHR) relied on the use of comparative law, a test of proportionality, and the margin of appreciation, the IACHR relied mainly on American domestic law and the opinions of two expert witnesses. In this case, the IACHR could learn from the approach of the ECHR to develop a more rigorous legal methodology in order to keep the coherence of the international legal system.</jats:p>
4
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The Normative Value of Human Rights Treaty Bodies’ Interpretations at the International Court of Justice
(2023)
Although the International Court of Justice (ICJ) is not a human rights court, it has recently addressed human rights issues, which has prompted interaction with the opinions of human rights mechanisms. This article will analyze the normative value of human rights treaty monitoring bodies’ interpretations recognized by the ICJ in three cases of its jurisprudence: the Wall Advisory Opinion, the case of Ahmadou Sadio Diallo, and the case of Qatar v. the United Arab Emirates. This analysis indicates that the ICJ has ascribed great normative weight to these interpretations, but it has been reluctant to adopt their views without conducting its own interpretative assessment of the norms. In its most recent case, the ICJ took an approach that completely departs from the interpretation adopted by the relevant treaty body. This article argues that such a position must be considered in light of the growing criticism that treaty bodies are facing about the quality of their reasonings and command of general international law. Accordingly, treaty bodies could enhance their legitimacy by learning from the ICJ’s approach to treaty interpretation, and in addition, could take advantage of the positive aspects of their non-binding character to develop meta-juridical discussions.
17

García Escobar, Gabriela

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