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The Advisory Practice of the Inter-American Human Rights Court

Published online by Cambridge University Press:  27 February 2017

Thomas Buergenthal
Thomas Buergenthal*
Affiliation:
Inter-American Court of Human Rights
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Extract

The American Convention on Human Rights entered into force in 1978. To date, 18 OAS member states, out of 31, have ratified it. Included among the states parties to the Convention are all the Central American Republics as well as Panama, Mexico, the Dominican Republic and Haiti. The five Andean Pact nations have ratified, as have Jamaica, Barbados and Grenada. Argentina is the latest state to become a party; it did so on September 5, 1984, and thus became the first and, to date, only Southern Cone country to do so. The others—Chile, Paraguay and Uruguay—have not ratified; nor have Brazil, the United States, Suriname and a number of English-speaking Caribbean states.

Type
Research Article
Information
American Journal of International Law , Volume 79 , Issue 1 , January 1985 , pp. 1 - 27
Copyright
Copyright © American Society of International Law 1985

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References

1 The American Convention on Human Rights [hereinafter cited as Convention] was opened for signature in San José, Costa Rica, on Nov. 22, 1969, and entered into force on July 18, 1978. For the text, see Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System [hereinafter cited as Handbook], OEA/Ser.L/V/II.60, Doc. 28, at 29 (1983), 9 ILM 673 (1970). The relevant travaux préparatoires are reproduced in 2 T. Buergenthal & R. Norris, Human Rights: The Inter-American System (1982).

2 Costa Rica, El Salvador, Honduras, Guatemala and Nicaragua.

3 Bolivia, Colombia, Ecuador, Peru and Venezuela.

4 The functions of these organs are described in Buergenthal, , The Inter-American System for the Protection of Human Rights, in 2 Human Rights in International Law: Legal and Policy Issues 439 (Meron, T. ed. 1984)Google Scholar, which also contains an extensive bibliography on the subject. Id. at 491.

5 The Protocol of Buenos Aires, 21 UST 607, TIAS No. 6847, which entered into force in 1970 and amended the 1948 OAS Charter, effected this change. See OAS Charter arts. 51(e), 112, and 150; Buergenthal, , The Revised OAS Charter and the Protection of Human Rights, 69 AJIL 828 (1975)CrossRefGoogle Scholar.

6 See Statute of the Inter-American Commission on Human Rights [hereinafter cited as Commission Statute], Arts. 1, 18–20. For the text of the Commission Statute, see Handbook, supra note 1, at 107, and 1 OAS General Secretariat, The Inter-American System: Treaties, Conventions & Other Documents [hereinafter cited as The Inter-American System], pt. 2, at 98 (F. V. Garcia-Amador ed. 1983).

7 See Convention, Art. 64, which deals with advisory jurisdiction.

8 See OAS Charter art. 112, which, after providing for the establishment of the Inter- American Commission on Human Rights, declares in paragraph 2 that “[a]n inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters” (emphasis added).

9 For the Statute of the Court, see Handbook, supra note 1, at 147. Article 60 of the Convention provides that “[t]he Court shall draw up its Statute which it shall submit to the [OAS] General Assembly for approval.” The OAS General Assembly gave that approval in October 1979 and the Statute entered into force on January 1, 1980.

10 To date, the following states have accepted the Court’s jurisdiction: Argentina, Costa Rica, Ecuador, Honduras, Peru and Venezuela.

11 Convention, Art. 62. See Buergenthal, , The Inter-American Court of Human Rights, 76 AJIL 231, 235–41 (1982)Google Scholar.

12 Convention, Arts. 67–68.

13 See id., Art. 64.

14 See, e.g., Convention, Arts. 41(d), 43 and 62.

15 “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion No. OC–1/82 of Sept. 24, 1982 [hereinafter cited as “Other Treaties”], Inter-American Court of Human Rights, ser. A: Judgments and Opinions, No. 1, para. 14 (1982), reprinted in 3 T. Buergenthal & R. Norris, supra note 1, Booklet 25, at 21 (1983), and 22 ILM 51 (1983).

16 OAS Charter art. 128.

17 For a description of these entities, see 1 The Inter-American System, supra note 6, pt. 1 , a t 198–200(1983).

18 The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion No. OC–2/82 of Sept. 24, 1982 [hereinafter cited as Effect of Reservations], Inter-American Court of Human Rights, ser. A: Judgments and Opinions, No. 2, para. 14 (1982), reprinted in 3 T. Buergenthal & R. Norris, supra note 1, Booklet 25, at 39 (1983), and 22 ILM 37 (1983).

19 Id.

20 Id., para. 16. Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion No. OC–3/83 of Sept. 8, 1983 [hereinafter cited as Restrictions to the Death Penalty], Inter-American Court of Human Rights, ser. A: Judgments and Opinions, No. 3, para. 42 (1983), reprinted in 23 ILM 320 (1984).

21 OAS Charter arts. 52–58.

22 The meaning of this phrase and the subject as a whole are discussed in the pages that follow. 23 “Other Treaties,” supra note 15. For a valuable analysis of this case, see Parker, , “Other Treaties”: The Inter-American Court of Human Rights Defines its Advisory Jurisdiction, 33 Am. U.L. Rev. 211 (1983)Google Scholar.

24 “Other Treaties,” supra note 15, para. 8.

25 Id., para. 21.

26 Id., para. 34.

27 Id., para. 25.

28 Id., para. 52.

29 The four Geneva Conventions, 75 UNTS 31, 85, 135 and 287, deal with the following subjects: the Amelioration of Conditions of the Wounded and Sick in Armed Forces in the Field; the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; the Treatment of Prisoners of War; and the Protection of Civilian Persons in Time of War. The four Conventions were opened for signature on Aug. 12, 1949, and entered into force on Oct. 21, 1950.

30 OAS Charter art. 3 and chs. VII, VIII, and IX; Convention, Art. 26.

31 Res. XXX, Final Act of the Ninth International Conference of American States, Bogotá, Colombia, March 30-May 2, 1948, at 38 (Pan-American Union 1948), reprinted in 1 T. Buergenthal & R. Norris, supra note 1, Booklet 5, at 1 (1982), and 1 The Inter-American System, supra note 6, pt. 2, at 5.

32 For an express holding to that effect, see Inter-American Commission on Human Rights, Res. No. 23/81, Case 2141 (U.S.) of Mar. 6, 1981, IACHR, Annual Report, 1980–1981, OEA/Ser.L/V/II.54, doc. 9, rev. 1, at 25, paras. 16–17 (1981), reprinted in 2 T. Buergenthal & R. Norris, supra note 1, Booklet 21, at 6, paras. 16–17 (1983). See generally Shelton, , Abortion and Right to Life in the Inter-American System: The Case of “Baby Boy,” 2 Hum. Rts. L.J. 309 (1981)Google Scholar; Buergenthal, supra note 5, at 835.

33 Commission Statute, supra note 6. For the legislative history of the Statute, see Norris, , The New Statute of the Inter-American Commission on Human Rights, 1 Hum. Rts. L.J. 379 (1980)Google Scholar; 1 T. Buergenthal & R. Norris, supra note 1, Booklet 9 (1982).

34 Commission Statute, supra note 6, Arts. 18 and 20.

35 See Convention, Preamble, para. 3 and Art. 29(d).

36 Convention, Preamble, paras. 3 and 4.

37 See, e.g., Western Sahara, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16). The Permanent Court of International Justice reached a contrary decision in the Advisory Opinion on Eastern Carelia, 1923 PCIJ, ser. B, No. 5, but the case has been consistently distinguished by the ICJ. See Fitzmaurice, , The Law and Procedure of the International Court of Justice, 1951–4; Questions of Jurisdiction, Competence and Procedure, 24 Brit. Y.B. Int’l L. 1, 140–42 (1958)Google Scholar. See also Pomerance, M., The Advisory Function of the International Court in the League And U.N. Eras 277 (1973)Google Scholar.

38 See Convention, Arts. 46, 51 and 62.

39 See Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Republic of Guatemala, OEA/Ser.L/V/II.61, doc. 47, rev. 1 (Oct. 5, 1983).

40 Country studies and reports are authorized by Article 41(c) of the Convention and Article 18(c), (d) and (g) of the Commission’s Statute; they may be carried out by the Commission in relation to all OAS member states. The power of the Commission vis-à-vis states not parties to the Convention flows from the general grant of authority contained in Article 112 of the OAS Charter, which refers specifically to the Convention. See Buergenthal, supra note 4, at 475–79. The power of the Commission to decide individual petitions is contained in Article 41(f) of the Convention and applies only to states parties. See Norris, , The Individual Petition Procedure of the Inter-American System for the Protection of Human Rights, in Guide to International Human Rights Practice 108 (Hannum, H. ed. 1984)CrossRefGoogle Scholar. The power of the Commission to receive communications by one state party against another is restricted to states that have made a special declaration under Article 45 of the Convention.

41 Restrictions to the Death Penalty, supra note 20.

42 Id., para. 37.

43 Id., para. 38.

44 Id., para. 41.

45 Id., para. 43.

46 Id., paras. 36 and 37.

47 For an analysis of the meaning of the phrase “other treaties concerning the protection of human rights in the American states,” found in Article 64(1), see pp. 5–8 supra.

48 Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, Advisory Opinion No. OC–4/84 of Jan. 19, 1984 [hereinafter cited as Proposed Amendments], Inter-American Court of Human Rights, ser. A: Judgments and Opinions, No. 4 (1984).

49 The proposed amendments related to Articles 14 and 15 of the Costa Rican Constitution, which govern the acquisition of Costa Rican nationality. The amendments sought to make it more difficult to acquire that country’s nationality by imposing longer residency requirements and prescribing additional qualifying standards and examinations. Id., para. 7.

50 Id., para. 28.

51 Id., para. 19.

52 Id., paras. 26 and 27.

53 Id., paras. 16 and 17.

54 Rules of Procedure of the Inter-American Court of Human Rights [hereinafter cited as Rules of Procedure], Art. 52, in Handbook, supra note 1, at 159.

55 Proposed Amendments, supra note 48, para. 17.

56 Article 75 of the American Convention reads as follows: “This Convention shall only be subject to reservations in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969.”

57 Effect of Reservations, supra note 18, para. 22.

58 Id., para. 38.

59 Proposed Amendments, supra note 48, paras. 29 and 30.

60 See Article 53 of the Court’s Rules of Procedure, supra note 54, which provides that “[w]hen the circumstances require, the Court may apply any of the rules governing contentious proceedings to advisory proceedings.”

61 See “Other Treaties,” supra note 15, para. 5; Effect of Reservations, supra note 18, para. 5; Restrictions to the Death Penalty, supra note 20, para. 5.

62 The European Court of Human Rights, by amendment of its Rules of Court, adopted on Nov. 24, 1982, has now established a procedure enabling individuals and states not parties to the proceedings to request permission to file “written comments” in contentious cases. European Court of Human Rights, Revised Rules of Court, Rule 37(2), Council of Europe, Cour (82) 107 (Dec. 2, 1982). The Revised Rules of Court entered into force on Jan. 1, 1983. This important step by the European Court may well influence the decision of the Inter-American Court on this subject. It should be noted, moreover, that the European Court now also permits individuals that instituted proceedings before the European Commission of Human Rights to participate in the proceedings before the European Court, even though they lack standing to take these cases to the tribunal. Id., Rule 33(1)(d) and 33(3)(d); Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), 213 UNTS 221, Art. 48. See also Sohn, L. & Buergenthal, T., International Protection of Human Rights 1118–48 (1973)Google Scholar.

63 Proposed Amendments, supra note 48, para. 17.

64 Rules of Procedure, supra note 54, Art. 52.

65 The assumption that Article 64(2) proceedings are basically “domestic” and therefore of no interest beyond the borders of the applicant state overlooks the fact that the Court’s task here is to interpret the Convention or other human rights treaties; it is not its function in Article 64(2) proceedings to interpret domestic law. Other states and OAS organs may therefore have as much of an interest in Article 64(2) proceedings as in those filed under paragraph 1, and they should routinely receive the requisite notice in both instances.

66 Proposed Amendments, supra note 48, para. 17.

67 Restrictions to the Death Penalty, supra note 20.

68 Id., para. 29.

69 Id., para. 21.

70 Id., para. 23.

71 Id., para. 25.

72 Id., para. 22.

73 Id., para. 24.

74 “Other Treaties,” supra note 15, para. 33.

75 Restrictions to the Death Penalty, supra note 20, para. 48; Proposed Amendments, supra note 48, para. 21.

76 Proposed Amendments, supra note 48, paras. 21 and 22.

77 Id., para. 26.

78 Government of Costa Rica (In the Matter of Viviana Gallardo, et al.), Decision of Nov. 13, 1981, Inter-American Court of Human Rights, No. G 101/81, para. 16 (1981), reprinted in 3 T. Buergenthal & R. Norris, supra note 1, Booklet 25, at 7 (1983), and 20 ILM 1424(1981).

79 Effect of Reservations, supra note 18, para. 33.

80 “Other Treaties,” supra note 15, para. 25.

81 Id., para. 21.

82 Effect of Reservations, supra note 18.

83 The two states in question were Barbados and Mexico. Mexico ratified with a reservation to Article 23(2) of the Convention, which deals with the right to participate in government. The Mexican reservation declared some rights guaranteed by that provision inapplicable to ministers of all religious denominations to the extent that they were barred, under Article 130 of the Mexican Constitution, from participation in certain political activities. Handbook, supra note 1, at 95, 96. Barbados made three reservations. The first applied to Article 4(4) of the Convention, which prohibits capital punishment for’ “political offenses or related common crimes,” and reserved the right of Barbados to apply the death penalty to treason. Its second reservation related to Article 4(5) of the Convention, which prohibits the execution of individuals who were under 18 years of age or over 70 at the time they committed the crime punishable by death. Barbados made this reservation, noting that its laws permit the execution of individuals who are over 16 and over 70. The third Barbadian reservation applied to Article 8(2)(e), which guarantees an “inalienable right” to counsel. Barbados declared that its laws do not ensure such a right. Handbook, supra, at 69–70.

84 Vienna Convention on the Law of Treaties, Art. 20(4), UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

85 Id., Art. 20(5).

86 For the various arguments that were made in the case, see Inter-American Court of Human Rights, ser. B: Pleadings, Oral Arguments and Documents (The Effect of Reservations on the Entry into Force of the Convention on Human Rights (Arts. 74 and 75)), No. 2 (1983).

87 Effect of Reservations, supra note 18, paras. 29 and 33. The European Commission of Human Rights had earlier intimated a similar view, Application No. 788/60 (Aus. v. Italy), 4 EUR. Y.B. Hum. Rts. 116, 140 (1960), as did the International Court of Justice in its Advisory Opinion on Reservations to the Convention on Genocide, 1951 ICJ Rep. 15 (Advisory Opinion of May 28); but no international tribunal has thus far articulated this principle as clearly as the Inter-American Court.

88 Effect of Reservations, supra note 18, para. 34.

89 Id., para. 35.

90 Vienna Convention on the Law of Treaties, supra note 84, Art. 20(1).

91 See, on this subject, the resolution of the Inter-American Juridical Committee, adopted on Aug. 15, 1984, entitled Guidelines that the Depositor of a Convention Must Follow within the Inter-American System, in respect of Matters Not Clearly Regulated, OEA/Ser.G, CP/doc. 1492/84 (Sept. 10, 1984). This resolution, which applies to treaties in general and makes no mention of human rights treaties, rejects the 1-year waiting period altogether and calls for consultation prior to the deposit of instruments of ratification with reservations consistent with earlier OAS practice. On the latter subject, see 1 The Inter-American System, supra note 6, pt. 1, at 335. Given the Court’s opinion, this recommendation should not be applied to human rights treaties.

92 It is important to note, in this connection, that when Argentina on Sept. 5, 1984 deposited an instrument of ratification of the Convention containing a reservation, the OAS Secretary General, on the advice of the new Legal Adviser, Dr. Hugo Caminos, decided that Argentina had become a party to the Convention on that date. Consistent with the Court’s advisory opinion, the fact that the ratification contained a reservation was not deemed to require delaying the entry into force of the Convention for Argentina.

93 Convention, Art. 74(1).

94 Effect of Reservations, supra note 18, para. 35.

95 Restrictions to the Death Penalty, supra note 20, para. 61.

96 On Article 27 in general, see Buergenthal, , The Inter-American System for the Protection of Human Rights, 1981 Anuario Juridico Interamericano 80 (1982)Google Scholar.

97 See, e.g., International Covenant on Civil and Political Rights, Annex to GA Res. 2200 (1966), Art. 4; European Convention on Human Rights, supra note 62, Art. 15; American Convention on Human Rights, Art. 27. See also Buergenthal, , International and Regional Human Rights Law and Institutions: Some Examples of their Interaction, 12 Tex. Int’l L.J. 321, 324–25 (1977)Google Scholar.

98 See Buergenthal, , To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Rights 72, 78–86 (Henkin, L. ed. 1981)Google Scholar; Hartman, , Derogation from Human Rights Treaties in Public Emergencies, 22 Harv. Int’l L.J. 1 (1981)Google Scholar; Higgins, , Derogation under Human Rights Treaties, 48 Brit. Y.B. Int’l L. 281 (1975–76)Google Scholar.

99 Restrictions to the Death Penalty, supra note 20, para. 61.

100 See Restatement of the Foreign Relations Law of the United States (Revised) §339, particularly comment a (Tentative Draft No. 1, 1980); Lillich, Civil Rights, in Meron (ed.), supra note 4, at 115, 119–20; Domb, , Jus Cogens and Human Rights, 6 Isr. Y.B. Hum. Rts. 104 (1976)Google Scholar. See generally Schwelb, , Some Aspects of International Jus Cogens as Formulated by the International Law Commission, 61 AJIL 946 (1967)Google Scholar.

101 The following states have accepted the jurisdiction of the Court: Argentina, Costa Rica, Ecuador, Honduras, Peru and Venezuela.

102 The contentious jurisdiction of the Court is governed by the provisions of Article 62 of the Convention, which reads as follows:

  • 1.

    1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.

  • 2.

    2. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases. It shall be presented to the Secretary General of the Organization, who shall transmit copies thereof to the other member states of the Organization and to the Secretary of the Court.

  • 3.

    3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement.