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					                                                          TEAM No. 213



                                                          TEAM No. 213




THE 2006 INTER-AMERICAN HUMAN RIGHTS MOOT COURT
                   COMPETITION

 IN THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
               SAN JOSE, COSTA RICA




     Case involving Juana Olin v. University of North Shore

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
                  PETITIONER

                               v.

                THE STATE OF IBEROLAND
                      RESPONDENT



                     SPRING TERM 2006
  On Submission to the Inter-American Court of Human Rights




           MEMORIAL FOR THE RESPONDENT
                                                                                                                     TEAM 213


                                              TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................ ii

STATEMENT OF FACTS ............................................................................................... 1
   A. Iberoland Constitutional Transformation ............................................................ 1
   B. Ms. Olin‟s Case ................................................................................................... 3
   C. The procedural History before the Inter-American System 2002-Present .......... 4

LEGAL ANALYSIS ......................................................................................................... 5

   I. Iberoland is in compliance with the American Convention because the allegations
   brought by the Commission are unfounded and this Court cannot be used as a fourth
   instance appeal ................................................................................................................ 5
      A. The record does not warrant a violation of Article 24: Equal Protection rights . 5
      B. Iberoland complied with Article 28: Federal Clause ........................................ 10
            1. Iberoland complied with Article 28.1 because the federal government
            implemented programs, incentives and law 678 while the right to education is
            exclusively within the jurisdiction of the provinces ....................................... 11
            2. Iberoland is in compliance with Article 28.2 because Ms. Olin was not
            discriminated against and the American Convention does not mandate
            affirmative action programs based on quotas ................................................. 13
      C. Iberoland fulfilled its obligation to Protect Rights of the Convention under
      Article 1 .................................................................................................................... 15
      D. Article 2: Domestic Legal Effect ...................................................................... 16
      E. Ms. Olin cannot use this Court as a fourth instance appeal............................... 18

   II. Iberoland is in full compliance with its obligations under the Protocol of San
   Salvador because it ensured and protected Ms. Olin‟s right to education within the
   bounds of the treaty....................................................................................................... 19
      A. Article 13: Right to Education .......................................................................... 19
      B. Iberoland‟s actions are also justified by Article 2 of the Protocol .................... 22

   III.Iberoland fully complied with the Convention of Belem do Para ........................... 22
      A. Article 7............................................................................................................. 23
      B. Article 6(a) ........................................................................................................ 26
      C. Article 9 ............................................................................................................. 27

REQUEST FOR RELIEF .............................................................................................. 28




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                            INDEX OF AUTHORITIES

   I.     TREATIES and CASES

   A. Treaties

American Convention on Human Rights, Article 24, O.A.S. Off Rec. OEA/Ser.LN/II.23
doc. 2 1, rev. 6 (1979), reprinted in 9 I.L.M. 673, (entered in force July 18, 1978).

Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social, and Cultural Rights [hereafter "Protocol of San Salvador"], adopted
November 17, 1988, O.A.S.T.S. No. 69 (entered into force November 16, 1999).

Inter-American Convention on the Prevention, Punishment and Eradication of Violence
Against Women, June 9, 1994, 27 U.S.T. 3301, reprinted in 33 I.L.M. 1534.

Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, 8
I.L.M. 679 (1969).

   B. Cases from the Inter-American Court of Human Rights

Velasquez Rodriguez Case, Judgment of July 29, Inter-Am.Ct.H.R., Series C, No. 4,
(1988).

Garrido and Baigorria Case, Judgment on Reparations of August 27, Inter-Am.Ct.H.R.,
Series C, No. 39 (1998).


   C. Cases from the Inter-American Commission on Human Rights

Adolescent in the custody of FEBEM (Brazil), Petition 12.328, Inter-Am. C.H.R., Report
No. 39/02, OEA/ser. L/V/II.117 doc. 5 rev. 1 (2002).

Andres Aylwin Azocar Et Al. Case (Chile), Case 11.863, Inter-Am. C.H.R., Report No.
137/99, OEA/ser. L/V/II.106 doc. 3 rev. (1999).

Benedict Jacob Case (Grenada), Case 12.158, Inter-Am. C.H.R., Report No. 56/02,
OEA/ser. L/V/II.117 doc. 5 rev. 1 (2002).

Edison Rodrigo Toledo Echeverria Case (Ecuador), Petition 346/01, Inter-Am. C.H.R.,
Report No. 54/01, OEA/ser. L/V/II.118 doc. 5 rev. 2 (2003).

Maria Da Penha Maia Fernandes Case (Brazil), Case 12.051, Inter-Am. C.H.R., Report
No. 54/01, OEA/ser. L/V/II.111 doc. 20 rev. (2000).




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Marzioni Case (Argentina), Case 11.73, Inter-Am. C.H.R., Report No. 39/96, OEA/Ser.
L/V/II.95 (1996).

Newton Coutinho Mendes Case (Brazil), Case 11.405, Inter-Am. C.H.R., Report No.
59/99, OEA/ser. L/V/II.102 doc. 6 rev. (1998).

   D. Cases from other jurisdictions

         1. International Courts and Commissions

Badeck v. Hessischer Ministerprasident, (C-158/97) [2000] ECR I-1875.

Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. 39, 43 (1949).

Eckhard Kalanke v. Frieie Hansestadt Bremen (Heike Glibmann intervening), Case C-
450/93, European Communities Court of Justice, [1996] All ER (EC) 66, [1996] 1 CMLR
175 (1995).

Hyacinthe Pellat case, decision of the France-Mexico Mixed Claims Commission of June
7, U.N. Report of International Arbitral Awards, vol. V, at 536 (1929).

Montijo Case, Arbitral award of July 26, VII, 1875 LA PRADELLE-POLITIS, Recueil
des Arbitrages Internationaux, Paris, vol. III, at 675 (1954)

         2. Australia

Jacomb v. Australian Municipal Administrative Clerical and Services Union, Federal
Court of Australia, 81 A.L.D. 1, at 50-59 (2004).

         3. South Africa

City of Pretoria v. Walker v. Walker, Constitutional Court of South Africa, 4 BHRC 324
(1998).

         4. United States

Gratz v. Bollinger, 539 U.S. 244 (2003)

Grunter v. Bollinger, 539 U.S. 306, 334 (2003)

Regent of the University of California v. Bakke, 438 U.S. 265, 314 (1978)


   II.      LEGAL BOOKS and OTHER AUTHORITIES




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   A. Reports from the Inter-American Commission

Annual Report of the Inter-American Commission on Human Rights 1999, Special
Studies: Considerations Regarding the Compatibility of Affirmative Action Measures
Designed to Promote the Political Participation of Women with the Principle of Equality
and Non-Discrimination, Ann. Rpt. Inter-Am. C.H.R. 1525, OEA/ser. L/V/II.106 doc. 3
rev., at paragraph 2. Section B.

Chapter VI of the Annual Report of the Inter-American Commission on Human Rights,
1999. available online at htty://www.cidh.org/women/Chapter6.htm.

   B. Legal Books

DAMROSCH ET. AL., INTERNATIONAL LAW, CASES AND MATERIALS (4TH ed.
2001).

Mark W. Janis, Introduction to International Law (4th Ed. 2003).

Thomas & Thomas, The organization of American Sates (1963).

   C. Scholarly Writings

Johanna E. Bond, Article: International Intersectionality: A Theoretical and Pragmatic
Exploration of Women‟s International Human Rights Violations, 52 Emory L.J. 71
(2003).

Mary C. Wagner, Comment: Belem Do Para: Moving Towards Eradicating Domestic
Violence in Mexico, 22 Penn St. Int'l L. Rev. 349 (2003).

Christian Bonat, The European Court of Human Rights, p. 14, published by the Federalist
Society(2003) available online at http://www.fed-
soc.org/Intllaw&%20AmerSov/eurocourthr.pdf .

Rhonda Copelon, Violence Against Women: The Potential and Challenge of a Human
Rights Perspective, in The Right to Live Without Violence, available at
http:/cceia.org/media/1061_hrd2-10.pdf

Susanna George, Women In Action, Why Intersectionality Works (2001), available at
http://www.isiswomen.org/pub/wia/wiawcar/intersectionality.htm

Women's Rights Project, The Human Rights Watch Global Report on Women's Human
Rights (1995), available at http://www.hrw.org/about/projects/womrep/.




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                                          STATEMENT OF FACTS

          A. Iberoland Constitutional Transformation

1. From 1507 to 1811, the nation of Iberoland was a colony that claimed the freedom of

   more than fifteen million Africans who were forced to support its agricultural system

   need for manual labor. Despite its independence in 1811, the nation continued its use of

   slaves until 1887. The economic and racial disparities fostered a series of civil conflicts

   and successive constitutions whereby the federal system was instituted.1

2. As a member of the Organization of the American States (“OAS”), Iberoland sought to

   provide autonomy to its regional governments while designating to its federal

   government certain basic functions.2 Iberoland currently consist of a capital metropolitan

   district and 16 provinces among, which North Shore is the poorest but with the greatest

   proportion of African-descendents.3

3. The current Federal Constitution was written in 1988, whereby each province dictates its

   own Constitution but guarantees the democratic principles consecrated in the Federal

   Constitution. Each province has exclusive power over the administration of justice and

   education.4 The Federal Constitution grants the Federal Congress the power to legislate

   and promote affirmative action measures to equal treatment, equal access of opportunity

   and equal and full enjoyment and exercise of the Federal Constitution‟s recognized

   rights. Furthermore, it guarantees the human rights guaranteed in the international

   1
       2006 Hypothetical Case Problem [hereafter “Case”], paragraph 1.
   2
       Case, paragraph 3.
   3
       Case, paragraph 3 and 4.
   4
       Constitution of Iberoland, Article 5, Case, paragraph 5.



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   agreements ratified by the State.5 However, the provinces reserve all powers not

   expressly delegated to the Federal Government and the Federal Congress cannot adopt

   laws on matters that have been reserved by the provinces.6 Furthermore, the Federal

   Constitution and the laws approved by and within the deferral Congress‟ power, as well

   as all treaties ratified by Iberoland constitute the supreme law of the land that all judges

   and provincial governors are to respect notwithstanding any provision to the contrary

   included in the provincial Constitutions or laws.7

4. The deferral government of Iberoland desegregated the educational system in 1922

   whereby school districts received a budget proportional to the amount of taxes collected

   within each district.8

5. In 1996, Iberoland experienced an impacting political transformation when Juan Acheben

   became the first President of African decent. In 2001, President Acheben was reelected

   for a second term.9 The new administration developed a series of policies, incentives and

   programs to achieve greater equality among the different racial sectors.10 Among these

   programs, Congress adopted in 1999 a general law to promote racial equality, Law No.

   678, which once effective in the 2000 academic year would require all federal, provincial

   or municipal higher public academic institutions to reserve twenty (20) percent of the

   spaces available for admission for students of African descents. Student‟s eligibility

   5
       Constitution of Iberoland, Article 39, Case, paragraph 6.
   6
     Constitution of Iberoland, Article 18, 2006 Clarifications to the Hypothetical Case [hereafter
   “Clarifications”], paragraph 9.
   7
     Constitution of Iberoland, Article 19, Clarifications, paragraph 9.
   8
       Case, paragraph 8 and 10.
   9
       Case, paragraph 14.
   10
        Case, paragraph 15.



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   would be based upon a successful surpassing of the minimum standards set by the

   institutional as to academic grades, the written exam and the oral interview.11 The law

   was adopted in 15 provinces but North Shore was not one of them.12

6. The new administration policies and programs stimulated the growth of 150 to 300

   percent in the student population of African descent just in the three first years after the

   policy was implemented and before it became effective.13

7. The University of North Shore, makes available 250 admission spaces, and places special

   emphasis on the results of the oral interviews.14 Typically, the number of students who

   meet the required minimum standards is greater than the number of students that can be

   admitted.

          B. Ms. Olin’s Case

8. Ms. Olin was among the 137 applicants who applied to the University of North Shore for

   the year 2000 and were not admitted although they surpassed the minimum standards.

   Ms. Olin did not consider applying to other universities in the countries and decided to

   remain in North Shore.15

9. Upon being rejected by the University of North Shore, Ms. Olin initiated legal action

   against North Shore, claiming a violation of Law 678. Ms. Olin won her case at the

   District Court but the Federal Court of Appeals reversed the decision. Consequently, Ms.



   11
        Constitution of Iberoland, Article 45, Case, paragraph 17.
   12
        Case, paragraph 18.
   13
        Case, paragraph 18
   14
        Clarifications, paragraph 5.
   15
        Case, paragraph 23.



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   Olin appealed before the Federal Supreme Court on October 5, 2001. 16 The Supreme

   Court rejected Ms. Olin‟s position after reviewing the existing racial disparity, and held

   that since Article 5 of the Constitution clearly established that the provinces are

   responsible for guaranteeing the right to education, Law 678 was unconstitutional.17 It

   further held that while affirmative action policies are desirable, there is no right to

   demand because there is no constitutional foundation warranting such obligation.18

          C. The procedural History before the Inter-American System 2002-Present

10. Ms. Olin was notified of the Supreme Court‟s adverse ruling on March 15, 2002. She

   presented her petition to the Inter-American Commission on Human Rights on September

   10, 2002. At numerous occasions, the Federal Government tried to arrive at an agreement

   by offering Ms. Olin the possibility to apply to other provincial universities that had

   complied with Law 678, as well as a scholarship for her studies. However, in a note to the

   Commission dated April 15, 2003, Ms. Olin explained that her inability to attend a

   university far from North Shore given the health of her mother, and North Shore‟s failure

   to provide another alternative, impeded a positive conclusion to the process.19 Ms. Olin

   did not inform the University of North Shore of her mother‟s health condition when she

   applied.20

11. Subsequently, the Commission and Ms. Olin presented the case before the Inter-

   American Court of Human Rights, arguing the violation of the following articles 1, 2, 24

   and 28 of the American Convention on Human Rights; Article 13 of the Additional

   16
        Case, paragraph 24.
   17
        Case, paragraph 26.
   18
        Case, paragraph 27.
   19
        Case, paragraph 28.
   20
        Case, generally and paragraphs 23 and 28.


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   Protocol to the American Convention on Human Rights, also known as “Protocol of San

   Salvador”; and Article 7, in connection with articles 6(a) and 9, of the Inter-American

   Convention on to Prevent, Sanction and Eradicate Violence Against Women, also known

   as the “Convention of Belem do para.”

                                             LEGAL ANALYSIS

          I.      Iberoland is in compliance with the American Convention because the
                  allegations brought by the Commission are unfounded and this Court
                  cannot be used as a fourth instance appeal

12. States Parties to the American Convention have undertaken to establish a “framework of

   democratic institutions, a system of personal liberty and social justice based on respect

   for the essential rights of man.”21

13. This Court established in Velasquez-Rodriguez Case that “because the Commission is

   accusing the Government… it, in principle, should bear the burden of proving the facts

   underlying its petition.”22

14. This Court should dismiss the claim alleging that the State of Iberoland violated Ms.

   Olin‟s Equal Protection rights because the Commission has not met its burden of proof.


                  A. The record does not warrant a violation of Article 24: Equal
                     Protection rights

11. Article 24 of the American Convention states that “all persons are equal before the law.

   Consequently, they are entitled, without discrimination, to equal protection.”23




   21
    American Convention on Human Rights [hereafter American Convention], Preamble, O.A.S. Off Rec.
   OEA/Ser.LN/II.23 doc. 2 1, rev. 6 (1979), reprinted in 9 I.L.M. 673, (entered in force July 18, 1978).
   22
        Velasquez Rodriguez Case, Judgment of July 29, Inter-Amer.Ct.H.R., Series C, No. 4, (1988) at 123.
   23
        American Convention, Article 24



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15. The right to equal protection, as set forth in Article 24 of the American Convention,

   requires that national legislation accord its protections without discrimination.24 The right

   “prohibits all discriminatory treatment originating in a legal prescription” and thus

   extends to domestic legislation, which member states must maintain free of

   discriminatory provisions.25

16. The Inter-American Court of Human Rights (hereafter IACHR) defines “discrimination”

   to include “distinction, exclusion, restriction or preference which has the purpose or

   effect of nullifying or impairing the recognition of human rights and fundamental

   freedoms in the political, economic, social cultural or any other field of public life.”26

   Distinctions based on status criteria like race or sex, necessarily give rise to heightened

   scrutiny.27 Identifying discriminatory treatment requires a showing of a difference in

   treatment between persons in a sufficiently analogous or comparable situation. However,

   as the IACHR has noted, differences in treatment or in circumstances, which are

   otherwise similar are not necessarily discriminatory. 28

17. In the present case, the State of Iberoland has not created any laws or policies impairing

   the rights or fundamental freedom of any individual, on the contrary, the new

   administration has been very successful in addressing issues of inequality through the


   24
     Annual Report of the IACHR 1999, Special Studies: Considerations Regarding the Compatibility of
   Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principle
   of Equality and Non-Discrimination [hereafter Special Report], Ann. Rpt. Inter-Am. C.H.R. 1525,
   OEA/ser. L/V/II.106 doc. 3 rev., at paragraph 2. Section B.
   25
        Special Report, supra note 24.
   26
    Annual Report of the IACHR 2002, Report No. 56/02, Case 12.158 Benedict Jacob Case (Grenada),
   October 21, 2002 at paragraph 16 of the Concurring Opinion of Commissioner Helio Bicudo.
   27
        Special Report, supra note 24.
   28
        Id.



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   implementations of several policies and incentives which resulted in a 150 to 300 percent

   increase in the population of African descent.29

18. Ms. Olin is also an example of the success that the State has had in addressing

   inequalities. Her family benefited from various federal programs. The entire family was

   incorporated into the federal health plan free of cost, her father was granted a low interest

   rate destined for small business projects and finally, Ms. Olin received various

   scholarships that the federal government exclusively set aside for students of African

   descent.

19. While the Commission may refer to the independent study reflecting a difference in the

   allocation of school budget, through which predominantly white school districts receive

   79.3 percent of the academic budget.30 The Court should not consider this study to

   demonstrate discrimination since “differences in treatment or in circumstances which are

   otherwise similar are not necessarily discriminatory” 31 The Government of South Africa,

   which shares Iberoland history of segregation and racial inequalities, reviewed the issue

   of differentiation. In the matter of City of Pretoria v. Walker v. Walker, the Constitutional

   Court found that where an electricity company was charging different rates between

   predominantly white communities and black communities, the differentiation did not

   amount to a violation of the right to equal protection before the law because the charges

   were based on objective calculations of profit returns.32



   29
        Case, paragraph 18
   30
        Case, paragraph 9.
   31
        Special Report, supra note 24.
   32
        City of Pretoria v. Walker v. Walker, Constitutional Court of South Africa, 4 BHRC 324 (1998).



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20. Similarly, the difference in treatment in this case is based on an objective standard where

   the budget allocation is proportional to the amount of tax collected within the said

   district.33 Hence, individuals who live in a district were the tax return is low would be

   similarly situated regardless of their race, gender, or social status.

21. The case at bar is distinguishable from the cases where the Inter-American Court has

   found a violation of Article 24. For example, in the Maria Da Penha Maia Fernandes

   Case the Court found that there was a violation of Article 24 because the evidence

   showed that compared to men, women were victims of domestic violence in

   disproportionate numbers34 and that the State had failed to effectively address the

   problem.35 In that case, the Commission had evidence that women were 30 times more

   likely to be killed by their husband than husband by their wives,36 frequent complaints

   made by women were not fully investigated or prosecuted,37 70% of the criminal

   complaints were put on hold without any conclusion being reached,38 and the measures

   taken by the State had no effect whatsoever.39

22. The case at bar is clearly distinguishable on several points. First, Ms. Olin did not assert

   that her rejection from admission was due to a discriminatory practice of North Shore

   University. Secondly, independent studies reported that only 3.5, 4.6 and 2.8 students of


   33
        Case, paragraph 10.
   34
    Ann. Rpt. Inter-Am. C.H.R. 2000, Report No. 54/01, Case 12.051 Maria Da Penha Maia Fernandes Case
   (Brazil), April 16, 2001, at paragraph 47.
   35
        Id,. at paragraph 50.
   36
        Id. at paragraph 47
   37
        Id.
   38
        Id., at paragraph 49.
   39
        Id,. at paragraph 50.


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   African descent respectively graduated in the years 2002, 2003, and 2004, However,

   those studies cannot be deemed reliable because they failed to also reflect the number of

   student admitted or who dropped out for each of those years. Thirdly, the State of

   Iberoland has implemented programs aimed at achieving greater equality for student of

   African descent. In fact, the President developed numerous policies, incentives, which

   were greatly supported by the Federal Congress and backed by the Supreme Court

   declaration of constitutionality for most of them.40 The simple fact that the President‟s

   programs contributed to improve the student population by 150 to 300%41 is a clear fact

   that the State was effective in addressing the issue.

23. Even assuming arguendo that the Court would find that further special measures must be

   implemented to secure the right to Equal Protection, Iberoland through its North Shore

   province is not required to mandate quotas program defined by Law 678. Indeed, Courts

   around the world have closely reviewed the implementation of automatic quotas.42 For

   example, the European Union Court has upheld that “flexible quota system” or quota that

   is not automatic and unconditional, as valid because it does not automatically or

   inflexibly exclude other candidates from objective consideration.43 Applying the

   reasoning of the Court, the quotas program under Law 678 does not meet the flexibility

   established by the European Court because it guarantees the automatic and unconditional

   admission of 50 students of African descent among all the students who pass the

   admission requirements.

   40
        Case, paragraph 16.
   41
        Case, paragraph 18.
   42
     Jacomb v. Australian Municipal Administrative Clerical and Services Union, Federal Court of Australia,
   81 A.L.D. 1, at 50-59 (2004).
   43
        Id. at 52, citing Badeck v. Hessischer Ministerprasident, (C-158/97) [2000] ECR I-1875.


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24. Moreover, the quotas such as those imposed under Law 678 fall within the categories that

    were struck down by the European Communities Court of Justice. In fact, in the matter of

    Eckhard Kalanke v. Frieie Hansestadt Bremen, where an employer instituted a quotas

    giving preference to women who met the same qualification as other men, the Court

    found that “the very fact that two candidates of different sex have equivalent

    qualifications implies in fact by definition that the two candidates have had and continue

    to have equal opportunities” wherefore the differentiated treatment is not linked to any

    specific condition of women but relates to all woman and such derogative are

    incompatible with principle of equal treatment.44 Analogously, the quota program under

    Law 678 requires gives preferential treatment to students of African descent who are

    successful in completing the application process (exam, grades and interview), hence

    they are given preferential treatment while they already stand on an equal footing with

    student who are not of African descent so that it frustrates the principle of equal

    treatment.

25. Given the aforementioned reasons, the Commission has failed to meet its burden in

    proving that Ms. Olin had been deprived of her right to equal protection since the record

    does not warrant such allegation, which she did not assert in her previous litigation.

                 B. Iberoland complied with Article 28: Federal Clause

26. Article 28 states in relevant parts that:

            1. “Where a State Party is constituted as a federal state, the national
            government of such State Party shall implement all the provisions of the
            Convention over whose subject matter it exercises legislative and judicial
            jurisdiction.


    44
     Eckhard Kalanke v. Frieie Hansestadt Bremen (Heike Glibmann intervening), Case C-450/93, European
    Communities Court of Justice, [1996] All ER (EC) 66, [1996] 1 CMLR 175, paragraph 13 and 18 (1995).



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              2. With respect to the provision over whose subject matter the constituent
              units of the federal state have jurisdiction, the national government shall
              immediately take suitable measures, in accordance with its constitution
              and its laws, to the end that the competent authorities of the constituent
              units may adopt appropriate provisions for the fulfillment of this
              Convention.”45

27. Hence, a federal State is responsible for the fulfillment of treaty obligations in its entire

   territory irrespective of internal division of powers; the only exceptions to this may be

   made in the treaty itself or in related circumstances.46

28. In the present case, Iberoland has fulfill its obligations by implementing policies,

   incentives and programs enforced and adopted by all the province at the exception of

   Law 678 which only the North Shore province did not adopt.

                             1. Iberoland complied with Article 28.1 because the federal
                                government implemented programs, incentives and law 678
                                while the right to education is exclusively within the jurisdiction
                                of the provinces

29. While the State cannot plead its federal structure to avoid complying with an

   international obligation47, its responsibility was statutorily defined in Article 28.1, which

   states that: “where a State Party is constituted as a federal state, the national government

   of such State Party shall implement all the provisions of the Convention over whose

   subject matter it exercises legislative and judicial jurisdiction”48 (emphasis added).




   45
        American Convention, Article 28.
   46
        DAMROSCH ET. AL., INTERNATIONAL LAW, CASES AND MATERIALS, p. 690 (4 TH ed. 2001).
   47
     IACHR, Garrido and Baigorria Case, Judgment on Reparations of August 27, 1998, paragraph 46;
   arbitral award of July 26, VII., 1875, in the Montijo Case, LA PRADELLE-POLITIS, Recueil des
   arbitrages internationaux, Paris. 1954, vol. III, p. 675; decision of the France-Mexico Mixed Claims
   Commission of June 7, 1929, in the Hyacinthe Pellat case, UN., Report of International Arbitral Awards,
   vol. V, p. 536).
   48
        American Convention, Article 28.1


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30. In the Newton Coutinho Mendes Case,49 the Commission was able to find that a violation

   of Article 28 had occurred because the Federative State of Brazil failed to take

   affirmative measures to implement and protect the right to life, human treatment, fair trial

   and judicial protection.50 In fact, the evidence in that case proved that police officers of

   the State of Para were involved in the illegal freeing of persons on trial, failure to arrest

   individuals against whom warrants had been issued so that such individuals continued

   their murder activities.51 But more importantly, the Federal State failed to implement

   effective measures within its power to successfully address and prevent the occurring

   violations once it became aware of them.52 Finally, the IACHR has held that when a State

   “has conducted itself as it the Federal State had jurisdiction over human rights matter.

   Hence, it can hardly argue the contrary now, as this would imply a breach of the principle

   of Estoppel.”53

31. The case at bar must be distinguished because Iberoland through its President has

   successfully addressed the inequalities among the races by implementing several

   programs and incentives that contributed to the increase of students of African descent by

   150-300%. The State‟s commitment to address inequality even went as far as invading

   the power of the provinces to guarantee the right to education in contravention of its own

   constitution.



   49
     Ann. Rpt. Inter-Am. C.H.R. 1998, Report No. 59/99, Case 11.405 Newton Coutinho Mendes Case
   (Brazil), April 13, 1999.
   50
        Newton Coutinho Mendes Case, supra note 49.
   51
        Id, at paragraph 103.
   52
        Id, at paragraph 107-108.
   53
        Id, at paragraph 117.


                                                      12
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32. Moreover, under Article 28.1, the obligations of the Federal State are limited to the

   subject matter over which “it exercises legislative and judicial jurisdiction.” According to

   the Constitution of Iberoland and the judicial branch, the federal government does not

   have jurisdiction over Education.54 Hence, the imposition of racial admission quotas was

   unconstitutional because the provinces have the jurisdiction to guarantee the right to

   education.

                             2. Iberoland is in compliance with Article 28.2 because Ms. Olin
                                was not discriminated against and the American Convention does
                                not mandate affirmative action programs based on quotas

33. Article 28.2 states “with respect to the provisions over whose subject matter the

   constituent units of the federal state have jurisdiction, the national government shall

   immediately take suitable measures, in accordance with its constitution and its laws, to

   the end that the competent authorities of the constituent units may adopt appropriate

   provisions for the fulfillment of this Convention” 55(emphasis added).

34. Under the Vienna Convention, the terms within a treaty shall be given “the ordinary

   meaning.”56 Hence, since Article 28.2 does not require the imposition on quota program

   and specifically used the term “may”57, the Court should interpreted it to be permissive

   rather than mandatory as to the adoption of appropriate measures.

35. In Iberoland, the provinces are responsible to guarantee the rights in the Convention that

   fall within their jurisdiction. However, the American Convention does not include the


   54
     Constitution of Iberoland, Article 5, Case, paragraph 5; Constitution of Iberoland, Article 18 and 19,
   Clarifications, paragraph 9.
   55
        American Convention, Article 28.2.
   56
     Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679
   (1969).
   57
        American Convention, Article 28.2


                                                        13
                                                                                                  TEAM 213


   right to an education or other economic-social rights, but rather commits the states

   parties, in Article 26, to work to achieve progressively “by legislation or other

   appropriate means, the full realization of the rights implicit in the economic, social,

   educational, scientific, and cultural standards set forth in the Charter of the Organization

   of American States.”58 Moreover, the IACHR has previously held that affirmative

   measures may be taken to ensure equality it has not mandated the imposition of quotas as

   the only implementation possible or required.59 Hence, a right to affirmative action

   through racial quotas cannot be derived from the right to equal protection and therefore,

   the provinces in Iberoland are not mandated to ensure it.

36. The Unites States share some historical similarities with Iberoland and have dealt with

   issues of racial inequalities and equal access to higher education. In the matter of Gratz v.

   Bollinger, admission quotas solely based upon race were found unconstitutional and in

   breach of the Equal protection clause.60 Several other American cases similarly held that

   while race could be use as a criteria for admission, it had to be one factor among others

   and its used had to be narrowly tailored to the purpose asserted by the universities.61

37. This further underlines the unconstitutionality of the Law 678 and its clear frustration

   with commonly held principle of Equal Protection, whereby the State of Iberoland should

   be found to not have breached its obligations under Article 28.2
   58
        DAMROSCH ET. AL., INTERNATIONAL LAW, CASES AND MATERIALS, p. 664 (4 TH ed. 2001).
   59
        Special Report, supra note 24.
   60
     Gratz v. Bollinger, 539 U.S. 244 (2003) (where white students who were denied admission to College
   challenged the use of racial preference in college admissions was successful because the racial criteria was
   not narrowly tailored to the university aim so that it violation the Equal Protection Clause).
   61
     Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (where student who was denied admission to law school
   challenged the race-conscious admission policy and did not prevail because race was only one factor
   among other); Regent of the University of California v. Bakke, 438 U.S. 265, 314 (1978) (where white
   student who was denied admission to medical school challenge the minority-based quotas program, which
   was found unconstitutional because race cannot be in itself the only criteria for admission).


                                                        14
                                                                                          TEAM 213


                  C. Iberoland fulfilled its obligation to Protect Rights of the Convention
                     under Article 1

38. Article 1 provides that “the States Parties to this Convention undertake to respect the

   rights and freedoms recognized herein and to ensure to all persons subject to their

   jurisdiction the free and full exercise of those rights and freedoms, without any

   discrimination for reasons of race, color, sex, language, religion, political or other

   opinion, national or social origin, economic status, birth, or any other social condition.”62

39. The IACHR has stated that the test is “whether a violation of the rights recognized by the

   Convention has occurred with the support or the acquiescence of the government, or

   whether the State has allowed the act to take place without taking measures to prevent it

   or to punish those responsible. Thus, the Court‟s task is to determine whether the

   violation is the result of a State‟s failure to fulfill its duty to respect and guarantee those

   rights, as required by Article 1(1) of the Convention.”63

40. Iberoland has taken affirmative steps in addressing inequalities within its society and has

   not ratified any acts committed in violation of the obligations stated in the American

   Convention. In fact, the Government implemented several policies and incentives aimed

   at reducing inequalities and Ms. Olin was able to have her case heard before a Federal

   and the Supreme Court.64




   62
        American Convention, Article 1.
   63
     Ann. Rpt. Inter-Am. C.H.R. 2000, Report No. 54/01, Case 12.051 Maria Da Penha Maia Fernandes Case
   (Brazil), Judgment of April 16, 2001, at paragraph 42.
   64
        Case, paragraphs 15, 16, 18 and 24-27.


                                                   15
                                                                                   TEAM 213


41. In the Maria Da Penha Maia Fernandes Case, the State of Brazil was found in violation of

   Article 1 because it ratified the acts of the perpetrators by failing to take effective

   measures to effectively address, protect and prevent further violations65.

42. The case at hand must be distinguished because Iberoland has put in place several

   incentives, policies and programs aimed at correcting the inequalities steaming from

   decades of institutionalized inequality. The unconstitutionality of law 678 and its quotas

   system does not in itself demonstrate a failure because 15 out of 16 of the provinces

   complied with the program. Moreover, even five of the six provinces that are not

   affiliated with the President‟s party nevertheless adopted the quotas showing that the

   provinces are committed to take affirmative steps to address the existing inequalities.66

43. This demonstrates the willingness of the State of Iberoland and its provinces in tackling

   the inequalities and the failure of one state to adopt one law cannot unjustly amount to the

   failure the entire administration especially where the law in question was found

   unconstitutional and the State acted in good faith.

                   D. Article 2: Domestic Legal Effect

44. Article 2 states that “where the exercise of any of the rights or freedoms referred to in

   Article 1 is not already ensured by legislative or other provisions, the States Parties

   undertake to adopt, in accordance with constitutional processes and the provision of this

   Convention, such legislative or other measures as may be necessary to give effect to

   those rights or freedoms”67(emphasis added). These are superior and fundamental values

   of the legal order established by the American Convention, which inspire and permeate

   65
        Case, paragraphs 47.
   66
        Case, paragraph 14 and 18.
   67
        American Convention, Article 2.


                                                 16
                                                                                                 TEAM 213


   its text, as a source of the international obligations assumed by the States parties to it; and

   should there be need to, undertake to adopt measures to make such rights effective.68

45. In the case at bar, the State has taken several steps to guarantee the right to equal

   protection by creating programs and incentives within its power. The obligations of

   Article 2 require compliance with the internal constitutional process, whereby the

   unconstitutionality of Law 678 was based upon such process. Iberoland is entitled to its

   sovereignty and the democratic process that established the current power sharing

   between the States and the province and hence only a democratic process should bring

   about any changes.

46. It would be an error to abolish the notion of the sovereignty of States as proposed by

   some jurist because such notion has its foundation in national sentiment and in the

   psychology of the peoples where it is very deeply rooted.69 The sovereignty of States is

   an institution, an international social function of a psychological character, which has to

   be exercised in accordance with the new international law.70 The notion of state

   sovereignty is that a state ought to be able to govern itself, free from outside

   interference.71 Each state has the right to develop its cultural, political and economic life

   freely and naturally.72

47. Hence, in order to implement quotas in university‟s admission process, the provinces

   would have to decide to adopt such policy. Fifteen out of the sixteen provinces have

   68
     Ann. Rpt. Inter-Am. C.H.R. 1999, Report No. 137/99, Case 11.863 Andres Aylwin Azocar Et Al. Case
   (Chile), December 27, 1999, at paragraph 125.
   69
        Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. 39, 43 (1949).
   70
        Id.
   71
        Mark W. Janis, Introduction to International Law, 159 Aspin Publishers (4th Ed. 2003).
   72
        Thomas & Thomas, The organization of American Sates, 223 (1963).


                                                         17
                                                                                             TEAM 213


   already done so and the State is confident that while it may take North Shore more time,

   it will eventually do the same. There is no evidence upon which the Commission may

   rely to assert that the rule of law should be change or that it will never happen.

48. In fact, the Commission may point out that North Shore politics is dominated by the party

   that opposed the President during his elections; nevertheless, such remark is irrelevant

   since 5 other provinces, which were not affiliated with the President, nevertheless

   adopted its quota program.73 The province of North Shore is taking a longer road towards

   the same goal. This is a pure political question not within the ambit of the Court. 74 While

   democratic processes may often take a long time they are part of the right of government

   to defined their constituency and assert their sovereignty.


          E. Ms. Olin cannot use this Court as a fourth instance appeal

49. International human rights tribunals have limited their power to the identification and

   rectification of particular violations of the Convention. Those courts including the

   European Court of Human Rights do not have “the power to strike down the statute that

   gave rise to the violation, or to overturn final decisions of national courts.”75

49. The Commission at several instances has acknowledged that its task is “to ensure the

   observance of the obligations undertaken by the States parties to the Convention, but it




   73
        Case, paragraphs 14 and 18.
   74
     Ann. Rpt. Inter-Am. C.H.R. 1999, Report No. 137/99, Case 11.863 Andres Aylwin Azocar Et Al. Case
   (Chile), December 27, 1999.
   75
     Christian Bonat, The European Court of Human Rights, p. 14, published by the Federalist Society
   available online at http://www.fed-soc.org/Intllaw&%20AmerSov/eurocourthr.pdf (last visited 03/29/06).


                                                     18
                                                                                             TEAM 213


   cannot serve as an appellate court to examine alleged errors of internal law or fact that

   may have been committed by the domestic courts acting within their jurisdiction.”76

50. In this case, Ms. Olin presented her case to the District Court of North Shore were she

   was successful in asserting that she was entitled to affirmative action under the umbrella

   of Law 678.77 However, the Federal Court of Appeals and the Supreme Court of the land

   reversed and affirmed that there was no right to affirmative action.78 Those finding were

   supported by published opinions whereby Ms. Olin was given a fair access and hearing of

   her case up to the highest Court of the land.

51. Absent any allegation against the competence of the Court and any provision mandating

   the institution and enforcement of a right to affirmative action through the imposition of

   racial quota in the Convention, the State cannot be found in violation of Equal Protection

   and Ms. Olin cannot turn to this Court has a fourth recourse.


          II.     Iberoland is in full compliance with its obligations under the Protocol of
                  San Salvador because it ensured and protected Ms. Olin’s right to
                  education within the bounds of the treaty

                  A. Article 13: Right to Education

52. Article 13 states that “everyone has the right to education,”79 that States Parties recognize

   that in order to achieve the full exercise of the right to education “higher education

   should be made equally accessible to all on the basis of individual capacity, by every

   76
     Ann. Rpt. Inter-Am. C.H.R. 2003, Report No. 54/01, Petition 346/01 Edison Rodrigo Toledo Echeverria
   Case (Ecuador), April 16, 2001, at paragraph 38; also see Marzioni Case (Argentina), Report No, 39/96,
   Case 11.73, October 15 1996.
   77
        Case, paragraph 24.
   78
        Case, paragraphs 25-27.
   79
     Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and
   Cultural Rights [hereafter "Protocol of San Salvador"], adopted November 17, 1988, O.A.S.T.S. No. 69
   (entered into force November 16, 1999), Article 13(1).


                                                     19
                                                                                            TEAM 213


   appropriate means, and in particular, by the progressive introduction of free education,”80

   and finally that nothing in the Protocol “shall be interpreted as a restriction of the

   freedom of individuals and entities to establish and direct educational institutions in

   accordance with the domestic legislation”81 (emphasis added).

53. Since its desegregation, Iberoland has provided equal access to its universities on the

   basis of “individual capacity,” the University review each applicant‟s grade point

   average, personal interview and general admission exam.82 Moreover, North Shore gives

   more emphasis to the interview83 whereby candidates can take such opportunity to

   highlight the particularities of their case. Here, Ms. Olin failed to provide two very

   important information on her case: (1) she did not inform the University that her

   motivation in applying was partly due to the precarious health of her mother,84 and that

   such condition precluded her from considering applying to other schools.85

54. The present case must be distinguished from cases where the Court has found a violation

   of Article 13, such as in the matter concerning Adolescent in the custody of FEBEM.86 In

   that case, the commission found that Brazil had violated of Article 13 (right to education)




   80
        Protocol of San Salvador, Article 13(3)(c).
   81
        Protocol of San Salvador, Article 13(5).
   82
        Case, paragraph 13.
   83
        Clarifications, paragraph 5.
   84
        Case, generally- paragraphs 23 and 28.
   85
        Id.
   86
     Annual Report of the IACHR 2002, Report No. 39/02, Petition 12.328 concerning Adolescent in the
   custody of FEBEM (Brazil), October 9, 2002.


                                                      20
                                                                                         TEAM 213


   because the adolescents who were in the custody of the FEBEM unit in São Paulo did not

   receive education at all during the time of their custody.87

55. The present case is distinguishable since Iberoland has desegregated its education and

   provided access to higher education in conformity with its obligations under the Protocol.

   In fact, the unconstitutionality of the quotas program instituted by Law 678 further the

   requirements of article 13 in two ways.

56. First, the State is bound to make higher education accessible solely on the basis of

   individual capacity; hence, the racial quotas are solely based on race and cannot pass

   such muster. Ms. Olin may have been able to be admitted had she presented the totality of

   her “individual capacity”. In fact, Ms. Olin failed to apply to other universities and she

   failed to mentioned that her mother‟s health was precarious which constituted her motive

   to stay in North Shore; it was only at the settlement negotiation that the State was made

   aware of her mother‟s condition and while there is no guarantee admission on such basis,

   North Shore puts a special emphasis on the interview88 where she should have mentioned

   the particularities of her case.

57. Secondly, under Article 13(5), the Protocol and the guarantee of the right to education

   cannot be used to restrict the freedom of the entities establishing or directing educational

   institutions in compliance with their domestic law.89 Hence, the federal government could

   not institute Law 678 since education is an area reserve to provincial power 90, and the




   87
        Adolescent in the custody of FEBEM (Brazil), supra note 86 paragraph 7 and 43.
   88
        Clarifications, paragraph 5.
   89
        Protocol of San Salvador, Article 13(5).
   90
        Constitution of Iberoland, see Case and Clarifications


                                                          21
                                                                                    TEAM 213


   Commission cannot use the Protocol to demand the imposition of law violating domestic

   legislation and internal democratic processes of a State.

58. Consequently, the Court must find that Iberoland remained in compliance with its

   obligations under the Protocol of San Salvador when it declared Law 678

   unconstitutional.

                   B. Iberoland’s actions are also justified by Article 2 of the Protocol

59. Article 2 of the Protocol provides that “If the exercise of the rights set forth in this

   Protocol is not guaranteed by legislative or other provision, the States Parties undertake

   to adopt, in accordance with their constitutional processes and the provisions of this

   Protocol, such legislative or other measures as may be necessary for making those rights

   a reality”91 (emphasis added).

60. Iberoland‟s Law 678 was enacted in violation of the constitutional process and hence had

   to be struck down by the Supreme Court. Hence, when the Supreme Court of Iberoland

   declared Law 678 unconstitutional, it comply with the requirements set under Article 2

   that laws and policies be implemented in “accordance with their constitutional

   processes”.


          III.     Iberoland fully complied with the Convention of Belém do Pará

61. This Court should dismiss the claim that Iberoland violated the Inter-American

   Convention to Prevent, Sanction and Eradicate Violence Against Women, also known as

   the Convention of Belém do Pará (hereinafter the Belém Convention) because it is not

   applicable in this case. Iberoland ratified the Belém Convention on February 25, 1998.92


   91
        Protocol of San Salvador, Article 2.
   92
        Clarifications, no 1.


                                                  22
                                                                                        TEAM 213


62. Belém Convention defines violence against women as “any act or conduct, based on

   gender which causes death or physical, sexual or psychological harm or suffering to

   women, whether in the public or private sphere.”93

63. The Belém Convention main focus was “explicitly on violence against women, including

   domestic violence.”94 “Potentially, its most noteworthy provision is that allowing

   individuals and groups to file petitions before the Inter-American Court on Human Rights

   for failures by a state to carry out their responsibilities under the treaty.”95

                  A. Article 7

64. The Commission is arguing that Iberoland violated Article 7 in connection with Article

   6(a) and Article 9.96 Article 7 states that:

              “[T]he States Parties condemn all forms of violence against women and
              agree to pursue, by all appropriate means and without delay, policies to
              prevent, punish and eradicate such violence and undertake to:
              (a) refraining from engaging in any act or practice of violence against
              women and the ensure that their authorities, officials, personnel, agents,
              and institutions act in conformity with this obligation;
              (b) apply due diligence to prevent, investigate and impose penalties for
              violence against women;
              (c) include in their domestic legislation penal, civil, administrative and any
              other type of provisions that may be needed to prevent, punish and
              eradicate violence against women and to adopt appropriate administrative
              measures where necessary;
              (d) adopt legal measures to require the perpetrator to refrain from
              harassing, intimidating or threatening the woman or using any method that
              harms or endangers her life or integrity, or damages her property;



   93
    See Mary C. Wagner, Comment: Belem Do Para: Moving Towards Eradicating Domestic Violence in
   Mexico, 22 Penn St. Int'l L. Rev. 349 (2003), quoting Article 1 of the Belém Convention.
   94
     Women's Rights Project, The Human Rights Watch Global Report on Women's Human Rights 347
   (1995).
   95
     See Rhonda Copelon, Violence Against Women: The Potential and Challenge of a Human Rights
   Perspective, in The Right to Live Without Violence.
   96
        Case, paragraph 29.


                                                   23
                                                                                          TEAM 213


               (e) take all appropriate measures, including legislative measures, to amend
               or repeal existing laws and regulations or to modify legal or customary
               practices which sustain the persistence and tolerance of violence against
               women;
               (f) establish fair and effective legal procedures for women who have been
               subjected to violence which include, among others, protective measures, a
               timely hearing and effective access to such procedures;
               (g) establish the necessary legal and administrative mechanisms to ensure
               that women subjected to violence have effective access to restitution,
               reparations or other just and effective remedies; and
               (h) adopt such legislative or other measures as may be necessary to give
               effect to this Convention.”97

65. The Commission is alleging that because of the history of discrimination faced by women

   in Iberoland (the first female professor of African descent to graduate in North Shore was

   in 1978)98, the State should adopt a gender-based affirmative action. Article 38 of the

   Statute of International Court of Justice, gives “international custom, as evidence of a

   general practice accepted as law.”99 Since, the Belém Convention does not mention

   gender-based affirmative action customary international law will have to be looked at.

   “Indeed, customary international law is sometimes said to be „general international law,‟

   a characteristic it may share with other non-consensual sources… .”100

66. One of the most grievous instances of discrimination occurred in South Africa during the

   Apartheid. This led to the establishment of the Convention on the Elimination of

   Discrimination Against Women (“CEDAW”). In its Preamble, the convention states:

   “Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination,

   colonialism, neo-colonialism, aggression, foreign occupation and domination and


   97
     Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
   [hereafter Convention of Belem do Para], June 9, 1994, 27 U.S.T. 3301, reprinted in 33 I.L.M. 1534.
   98
        Case, paragraph 12.
   99
         Janis, supra note 68 at 42.
   100
         Id.


                                                   24
                                                                                               TEAM 213


   interference in the internal affairs of States is essential to the full enjoyment of the rights

   of men and women ... .”101 The drafters thus recognized the importance of racial

   discrimination and the potential for discrimination based on race and gender to intersect.

   They did not, however, incorporate that insight into the actual text of the document,

   which sets forth States parties' obligations. Moreover, they did not establish a gender-

   based affirmative action system or mention it.

67. Other conventions which address this issue but do not recommend a gender-based

   affirmative action program are: (1) the United Nations Declaration on the Elimination of

   Violence against Women; (2) the Universal Declaration of Human Rights; (3) the United

   Nations Division for the Advancement of Women; and (4) the Agreed Conclusions on

   Gender and All Forms of Discrimination.

68. The Inter-American Commission on Human Rights was asked by the Inter-American

   Commission of Women to “provide a juridical analysis of the compatibility of affirmative

   action measures designed to promote the political participation of women, including

   quota systems, with the principle of non-discrimination on the basis of gender, national

   legislation and the corresponding international instruments.”102 Reporting on the Belém

   Convention, the Commission found that “the purposes of (the Belém Convention) and the

   principle of efficacy require that these guarantees be implemented in practice.” The

   report continues, “the domestic system must offer available and effective judicial

   recourse to persons alleging the violation of their right to be free from discrimination.

   Further, where domestic remedies prove unavailable or ineffective, the inter-American


   101
     Johanna E. Bond, Article: International Intersectionality: A Theoretical and Pragmatic Exploration of
   Women‟s International Human Rights Violations, 52 Emory L.J. 71 (2003).
   102
         Chapter VI of the Annual Report of the Inter-American Commission on Human Rights, 1999.


                                                      25
                                                                                                TEAM 213


   system provides for the possibility of recourse through its individual case system. Thus,

   the guarantees at issue are not merely hortatory or formal; the mechanisms of the regional

   system exist to ensure that they are implemented and made effective.”103 Not anywhere in

   its recommendations is the notion of a gender-based affirmative action system

   mentioned.104

                B. Article 6(a)

69. Iberoland did not violate Article 6(a). Article 6(a) states that “[T]he right of every woman

   to be free from violence includes, among others: [T]he right of women to be free from all

   forms of discrimination.”105

70. This Court explained this article in the Maria Da Penha Maia Fernades case saying that

   “the Convention of Belém do Pará is an essential instrument that reflects the great effort

   made to identify specific measures to protect the right of women to a life free of

   aggression and violence, both outside and within the family circle.” 106 Ms. Olin has not

   faced discrimination according to the Courts above definition. Moreover, Ms. Olin has

   not faced aggression and/or violence for the purposes the Belém Convention was written.




   103
         Id.
   104
      Id. The recommendations were:
   “The CIM, for its part, has recommended a series of measures designed to promote such participation,
   including, inter alia, that the member states:
            Promote the reform of electoral laws and the statutes of political parties to include mechanisms
   that guarantee equal participation by men and women.
            Promote legislation mandating proportional representation in offices awarded by popular vote, in
   countries where such laws do not exist, and support the stiffening and enforcement of election laws or
   regulations that stipulate proportional quotas for women running for such offices.”
   105
     Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against
   Women, June 9, 1994, 27 U.S.T. 3301, reprinted in 33 I.L.M. 1534.
   106
      Ann. Rpt. Inter-Am. C.H.R. 2000, Report No. 54/01, Case 12.051 Maria Da Penha Maia Fernandes Case
   (Brazil), April 16, 2001, at paragraph 53.


                                                       26
                                                                                                    TEAM 213


71. This article in connection with Article 7 would require that Iberoland adopt legislation

   and create policies including refraining from engaging in acts of violence against women.

   Iberoland has done the above by opening up its judicial system to Ms. Olin and listening

   to her arguments. However, Ms. Olin did not raise the issue of violence and/or

   discrimination in her arguments. Therefore, Iberoland did not violate Article 6(a) in

   connection with Article 7.

                 C. Article 9

72. Article 9 states that “[W]ith respect to the adoption of the measures in this Chapter, the

   States Parties shall take special account of the vulnerability of women to violence by

   reason of, among others, their race or ethnic background or their status as migrants,

   refugees or displaced persons. Similar consideration shall be given to women subjected

   to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically

   disadvantaged, affected by armed conflict or deprived of their freedom.”

73. The Commission is alleging that Iberoland violated the above article. This Court has not

   expanded this article to include establishing gender-based affirmative action (the legality

   of which was previously addressed). A professor of International Women‟s Human

   Rights     explained       that    “[T]he      Belém       Convention's       implicit     recognition       of

   intersectionality107 is the result of growing recognition within the international human

   rights community that gender discrimination does not manifest itself in the same ways for

   all women, but rather that it intersects and combines forces with other systems of



   107
       Several critical race feminists popularized the term “intersectionality.” Intersectionality goes beyond just
   looking at the gender aspects of racial discrimination. It seeks to provide a tool for analyzing the ways in
   which gender, race, class and all other forms of identity and distinction, in different contexts, produce
   situations in which women and men become vulnerable to abuse and discrimination, Susanna George,
   Women In Action, Why Intersectionality Works (2001).


                                                         27
                                                                                     TEAM 213


   subordination.”108 The other systems of subordination she is referring to are abuse and

   violence.

74. Similar to Article 6(a), this article in connection with Article 7 would require that

   Iberoland adopt legislation and create policies to protect the measures mentioned in

   Articles 7 and 8. Iberoland took the necessary steps “to modify social and cultural

   patterns of conduct of men and women, including the development of formal and

   informal education programs.”109

75. According to the 2004 Annual Report of the Inter-American Commission of Human

   Rights the General Assembly recalled that the Convention of Belém do Pará

   “recommended specific measures to prevent and address all forms of violence against

   women and the allocation of the necessary resources to prevent, punish, and eradicate

   gender-based violence.” The report also recommended that member states “take concrete

   steps to ensure the effective enforcement of national legislation, consistent with the

   ratified regional and international conventions on the elimination of discrimination and

   violence against women.”

76. Iberoland has done all of the above and therefore is not in violation of Article 9.110


                                          REQUEST FOR RELIEF


77. For the reasons aforementioned in the present memorial based on the issues of fact and

   law, the State of Iberoland respectfully requests that the Inter-American Court of Human

   Rights finds the that Iberoland complied with its obligations under (1) articles 1, 2, 24,

   108
         See Johanna E. Bond, supra note 85 at 111.
   109
         Article 8(b).
   110
         Please refer to the discussion on Article 24 of the IAHRC


                                                         28
                                                                         TEAM 213


and 28 of the American Convention on Human Rights; (2) article 13 of the Additional

Protocol to the American Convention on Human Rights; and (3) article 7 in connection

with articles 6(a) and 9 of the Inter-American Convention to Prevent, Sanction and

Eradicate Violence Against Women.




                                        29

				
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