Serie B - No.1 - Doc. 14

Puntos de vista recibidos de varias organizaciones como Amici Curiae - International Human Rights Law Group (inglés únicamente)

CAROLINE G. HARRIS, ESQ.
Webster & Sheffield
601 Milam
Houston, Texas 77002

AMY YOUNG-ANAWATY, ESQ.
Executive Director
International Human Rights
Law Group
Washington, D.C. 20036
Attorneys for Amicus Curiae

Of Counsel: Donald J. Cohn
Stephen J. Shapiro
Webster & Sheffield
One Rockefeller Plaza
New York, N.Y. 10020

Jordan J. Paust
University of Houston

September, 1982

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. INTEREST OF AMICUS CURIAE

II. QUESTIONS PRESENTED

III. SUMMARY OF ARGUMENT

IV. PROVISIONS OF THE AMERICAN CONVENTION ON HUMAN RIGHTS GRANT THE COURT THE POWER TO INTERPRET THE AMERICAN CONVENTION AND OTHER INTERNATIONAL INSTRUMENTS AND CUSTOMARY INTERNATIONAL LAW

A. ARTICLE 64 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS GRANTS THE COURT THE POWER TO INTERPRET THE AMERICAN CONVENTION AND OTHER INTERNATIONAL INSTRUMENTS AND CUSTOMARY INTERNATIONAL LAW

B. THE PREAMBLE OF THE AMERICAN CONVENTION AUTHORIZES THE COURT TO CONSIDER OTHER TREATIES, DECLARATIONS, AND INTERNATIONAL INSTRUMENTS WHICH ARE EVIDENCE OF CUSTOMARY INTERNATIONAL LAW WHEN INTERPRETING THE AMERICAN CONVENTION

C. ARTICLE 29(b) (c) & (d) OF THE AMERICAN CONVENTION AUTHORIZE THE COURT TO CONSIDER OTHER TREATIES, DECLARATIONS, AND INTERNATIONAL INSTRUMENTS WHICH ARE EVIDENCE OF CUSTOMARY INTERNATIONAL LAW WHEN INTERPRETING THE AMERICAN CONVENTION

D. THE PREPARATORY WORK OF THE AMERICAN CONVENTION INDICATES THAT THE COURT MAY CONSIDER THE EUROPEAN CONVENTION AND UNITED NATIONS TREATIES ON HUMAN RIGHTS WHEN INTERPRETING THE AMERICAN CONVENTION

V. OTHER OBLIGATIONS OF MEMBER STATES OF THE OAS REQUIRE THAT THE COURT INTERPRET TREATY OBLIGATIONS MADE OUTSIDE THE INTER-AMERICAN SYSTEM

VI. ARTICLE 64(1) GRANTS THE COURT JURISDICTION TO INTERPRET OTHER TREATIES WITHIN OR OUTSIDE THE INTER-AMERICAN SYSTEM, RATIFIED BY AMERICAN AND OTHER STATES, WHICH CONCERN THE PROTECTION OF HUMAN RIGHTS IN THE AMERICAN STATES

VII. THE PURPOSE OF THE AMERICAN CONVENTION IS SERVED BOTH BY THE COURT'S INTERPRETATION OF THE AMERICAN CONVENTION IN CONJUNCTION WITH TREATIES AND DECLARATIONS, RATIFIED OR ADOPTED BY AMERICAN AND OTHER STATES, AND BY THE COURT'S INTERPRETATION OF OTHER TREATIES CONCERNING THE PROTECTION OF HUMAN RIGHTS IN THE AMERICAN STATES

VIII. CONCLUSION

TABLE OF AUTHORITIES

Opinions of International Courts:

In the Matter of Viviana Gallardo,

No. G 101/81 Slip op. (Inter-Am.Ct.Hum.Rts., Nov.13, 1981)

Arrowsmith Case,

Application No.7050/75, Report of the European Commission of Human Rights adopted on 12 Oct., 1978, Council of Europe, Doc. 1.17 84, at 20 (Strasbourg 1980)

Paton v. United Kingdom,

Application No. 8416/78, Decision of 13 May, 1980, reprinted in 1 Hum. Rt. L. J. 342, 346

Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa) notwithstanding Security Council Resolution 276 (1970),

[1971] I.C.J. 16

Case Concerning United States Diplomatic and Consular Staff in Teheran (United States v. Iran),

[1980] I.C.J.I.

Opinions of United States Courts:

Filartiga v. Pena-Irala, 630 F. 2nd 876 (2d Cir. 1980)

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980), aff'd, 654 F. 2d 1382 (10th Cir. 1981)

Statutes:

Rules of Procedure of the Inter-American Court of Human Rights, arts. 49-50, Annual Report of the Inter-American Court of Human Rights to the General Assembly, 1980, 26, OEA/Ser.L/V/III. 3, doc 13, Corr 1. (1981)

Statute of the Inter-American Commission on Human Rights, art. 1.1 & 1.2

International Agreements:

American Convention on Human Rights, O.A.T.S. No. 6, at 1. O.A.S.O.R., OEA/SER.K/XVI/1.1, doc. 65, rev. 1, Corr. 2 (1970)

Charter of the Organization of American States, 2 U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N.T.S. 48, entered into force Dec. 13, 1951, as amended by the Protocol of Buenos Aires, T.I.A.S. No. 6847, O.A.S.T.S. No. 1-A, O.A.S.O.R., OEA/Ser. a/2, Add.2, entered into force Feb. 27, 1970

Charter of the United Nations, 59 Stat. 1031, T.S. No. 993, entered into force Oct. 24, 1945

[European] Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, signed Nov. 4, 1950, entered into force Sept. 3, 1953

International Covenant on Civil and Political Rights, 21 U.N. GAOR, Supp. (no. 16) 52, U.N. Doc. A/6316 (1966), adopted by UN G.A. res. 2200A (XXI), Dec. 16, 1966, entered into force March 23, 1976

International Covenant on Economic, Social and Cultural Rights, 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1966), adopted by UN G.A. res. 2200 A (XXI), Dec. 16, 1966, entered into force Jan. 3, 1976

Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf. 39/27, was adopted on May 22, 1969, and entered into force on Jan. 27, 1980

Other International Instruments:

American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States, Bogota, May 2, 1948, OEA/Ser.L/VI/ 1.4 Rev. (1965)

Montreal Statement of the Assembly for Human Rights, 9 Int'l Comm'n. Jurists 94 (1968)

Report of the U.N. Seminar on National, Local and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region, held in Colombo, Sri Lanka June 21-July 2, 1982 (unpublished as of this date)

Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948)

Books and Journals:

C. Bauer, The Observance of Human Rights and the Structure of the System for Their Protection in the Western Hemisphere, 30 Am. U. L. Rev. 5 (1981)

T. Buergenthal, The Inter-American Court of Human Rights, 76 Am. J. Int'l L. 231 (1982)

T. Buergenthal, The American and European Conventions on Human Rights: Similarities and Differences, 30 Am. U. L. Rev. 155 (1981)

T. Buergenthal, International and Regional Human Rights Law and Institutions: Some Examples of Their Interaction, 12 Tex. Int'l L. J. 321 (1977)

C. de Abranches, The Inter-American Court of Human Rights, 30 Am. U.L. Rev. 79 (1981)

D. Fox, The American Convention on Human Rights and Prospects for United States Ratification, 3 Hum. Rts. (ABA) 243 (1973)

W. Friedmann, O Lissitzyn & R. Pugh, International Law: Cases and Materials, (Supp. 1972)

J. Frowein, The European and the American Conventions on Human Rights: A Comparison, 1 Hum. Rts. L. J. 44 (1980)

J. Humphrey, The International Bill of Rights: Scope and Implementation, 17 Wm. & Mary L. Rev. 527 (1976)

J. Paust, Human Rights: From Jurisprudential Inquiry to Effective Litigation, 56 N.Y.U.L. Rev. 227 (1981)

R. Piza, The Coordination of the Mechanisms for the Protection of Human Rights in the American Convention with Those Established by the United Nations, 30 Am. U. L. Rev. 167 (1981)

L. Sohn & T. Buergenthal, International Protection of Human Rights (1973)

P. Szasz, Enhancing the Advisory Competence of the World Court, 2 THE FUTURE OF THE INTERNATIONAL COURT (L. Gross, ed. 1976)

M. Tardu, The Protocol to the United Nations Covenant on Civil and Political Rights and the Inter-American System: A Study of Co-Existing Petition Procedures, 70 Am. J. Int'l L. 778, (1976)

I. INTEREST OF AMICUS CURIAE

The International Human Rights Law Group ["Law Group"] is a non-profit legal organization which seeks to promote the observance of international human rights norms. Founded by the Procedural Aspects of International Law Institute, a non-governmental organization of international lawyers and scholars which has consultative status with the United Nations (ECOSOC), the Law Group provides legal assitance and information in the field of international human rights law. With the assitance of attorneys who contribute their services to the Law Group, this expertise in international law and human rights is offered on a pro bono basis to individuals and groups concerned with respect for human rights.

The Law Group files numerous submissions with international and regional intergovernmental bodies concerned with the protection of human rights. These submissions invoke international norms of human rights and fundamental freedoms, without regard to the particular political, economic or geographic context in which violations may take place.

While in some instances consideration by the Inter-American Court of Human Rights ["Court"] of the special characteristics of this hemisphere may be appropriate, we believe that the rights of each individual will be better respected if they are viewed as the inherent rights of all human beings. For this reason, the Law Group urges the Court in its advisory opinion to adopt the views set forth in this Brief.

II. QUESTION PRESENTED

The Government of Peru seeks an advisory opinion concerning the scope of this Court's jurisdiction to issue advisory opinions,1 pursuant to Article 64 of the American Convention on Human Rights.2 Article 64 provides:

1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court.

2. The Court, at the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.
(Emphasis added).

The Government of Peru notes that Article 64 of the American Convention on Human Rights "in establishing the advisory jurisdiction of the Court, does not limit the Court to the interpretation of the Convention alone but expressly extends to it the power to interpret 'other treaties concerning the protection of human rights in the American state'."3 The Government of Peru wishes to know the true meaning of the phrase, "other treaties concerning the protection of human rights in the American states," and requests specifically:

How should the phrase "or of other treaties concerning the protection of human rights in the American states" be interpreted?

[In particular, does the] phrase refer to and include:

a) Only those treaties adopted within the framework or under the auspices of the inter-American system? or

b) The treaties drawn up solely among the American states, that is, the reference is limited to the treaties in which the American states are parties exclusively? or

c) All treaties in which one or more American states are parties?4

III. SUMMARY OF ARGUMENT

The Law Group contends that Article 64, in granting the Court power to interpret two categories of treaties, the American Convention and "other treaties concerning the protection of human rights in the American states," permits and in some instances mandates the Court to consider a variety of international instruments pertaining to human rights.

Specifically, the Law Group argues in Parts IV and V of this Brief that when intepreting the American Convention the Court should consider the text of the Convention in conjunction with a wide range of international instruments and generally accepted international standards pertaining to human rights. This position is based upon an understanding of Article 64(1), in relation to the Preamble and Article 29 or the American Convention, the preparatory work of the American Convention, and the Charters of the Organization of American States and the United Nations.5

The Law Group asserts in Part VI of this Brief that when interpreting "other treaties concerning the protection of human rights in the American states," the Court can render opinions about any other treaties concerning human rights in the American states, and may refer to declarations and other regional and international instruments. The Court can render advisory opinions concerning treaties to which both American and other states are parties, which apply regionally and internationally, in which human rights are either the sole subject of the treaty, or one of several concerns addressed in the treaty.

Further, the Law Group argues in Part VII of this Brief that the purpose of the American Convention is served by both the Court's interpretation of the American Convention in conjunction with treaties and declarations, ratified or adopted by American and other states, and by the Court's interpretation of other treaties concerning the protection of human rights in the American states.

IV. PROVISIONS OF THE AMERICAN CONVENTION ON HUMAN RIGHTS GRANT THE COURT THE POWER TO INTERPRET THE AMERICAN CONVENTION AND OTHER INTERNATIONAL INSTRUMENTS AND CUSTOMARY INTERNATIONAL LAW

A. ARTICLE 64 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS GRANTS THE COURT THE POWER TO INTERPRET THE AMERICAN CONVENTION AND OTHER INTERNATIONAL INSTRUMENTS AND CUSTOMARY INTERNATIONAL LAW

The United Nations, the Organization of American States, the Council of Europe, and the Organization of African Unity are among the major existing6 international and regional systems for maintaining world peace, achieving cooperation in solving international economic and social problems, and promoting and encouraging respect for human rights and fundamental freedoms for all people.7 These intergovernmental institutions share a philosophical belief in the inherent dignity of each human being and in the existence of fundamental principles of liberty and justice. The development of the OAS as a regional institution which promotes and protects human rights has been independent of, yet parallel to, the development of the other international bodies.8 It has drawn on the experiences and instruments of the United Nations and the Council of Europe to define its goals, to design its structures, and to delineate the human rights it promotes and protects.9 It also has contributed to the development of human rights law and procedures within the UN and the Council of Europe.

To further its human rights goals, the OAS, through its Charter,10 directed the member states to draft and adopt a convention on human rights, particular to the American states. The resulting convention is the American Convention on Human Rights.11 It specifies civil, political, economic, social, and cultural rights,12 and establishes means of protecting the rights provided.13 It designates two organs as having competence respecting "matters relating to the fulfillment of the commitments made by the State parties to the Convention": the Inter-American Commission on Human Rights ["Commission"] and the Inter-American Court of Human Rights.14 The two organs operate independently. The Commission acts as an arbitrator. If it fails to achieve a friendly settlement to a dispute it may,but it is not obliged to, submit the case to the Court.15 The Commission's procedures must be completed,16 and they may not be waived,17 before a case is submitted to the Court for adjudication.

The Court may exercise both adjudicatory and advisory jurisdiction. Adjudicatory jurisdiction permits the Court "to decide disputes involving charges that a state party has violated the human rights guaranteed by the Convention."18 It "comprises all cases concerning the interpretation and application of the provisions submitted to it, provided the State parties to the Case recognize [the jurisdiction of the Court]"19 "as binding ...on all matters relating to the interpretation or application of [the] Convention."20 Only state parties and the Commission have the right to submit a case to the Court.

Article 64 grants the Court jurisdiction to issue advisory opinions. The Court may interpret (1) the American Convention and (2) "other treaties concerning the protection of human rights in the American states."21 It also may render an opinion regarding the compatibility of a member state's domestic laws with the Convention and other treaties.22 The Court may accept requests for advisory opinions from member states and from various organs of the OAS.23 No administrative procedures need be completed before a state or organ consults the Court. The state requesting the opinion need not recognize the Court's opinion as binding. Thus, the absence of procedural pre-requisites and conditions renders the Court's advisory jurisdiction available to more entities and therefore, more accessible than is its adjudicatory jurisdiction.24

B. THE PREAMBLE OF THE AMERICAN CONVENTION AUTHORIZES THE COURT TO CONSIDER OTHER TREATIES, DECLARATIONS, AND INTERNATIONAL INSTRUMENTS WHICH ARE EVIDENCE OF CUSTOMARY INTERNATIONAL LAW WHEN INTERPRETING THE AMERICAN CONVENTION

The Preamble of the American Convention authorizes the Court to consider other human rights related treaties, declarations, and sources of customary international law when interpreting the American Convention. The Preamble of the American Convention highlights the philosophical and institutional context of the American Convention. It suggests the wide range of international instruments protecting human rights which the Court can consult to aid in its interpretation of the American Convention under Article 64(1). The Preamble announces:

The American states signatory to the present Convention,

Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man;

Recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states;

Considering that these principles have been set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments worldwide as well as regional in scope;

Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights; and

Have agreed...
(Emphasis added).

The Preamble expresses the American states' belief in the inherent dignity of each human being and the essential nature of human rights which unites the international system for the promotion and protection of human rights. It identifies these beliefs specifically in the instruments of the OAS (the O.A.S. Charter and the American Declaration of the Rights and Duties of Man25) and the UN (the Universal Declaration of Human Rights26). It acknowledges that these principles have been expressed and refined in other regional and international instruments. Informed by their beliefs and by the other institutions' pronouncements on human rights, the signatory states ratified the American Convention. Thus, the American Convention was drafted with reference to other regional and international norms of human rights and should be intepreted in that context.

The Preamble's explicit references to other charters, declarations, and international instruments concerning the protection of human rights enables the Court to interpret the American Convention in light of related instruments dealing with human rights of other regional and international bodies.

C. ARTICLE 29(B), (C) & (D) OF THE AMERICAN CONVENTION AUTHORIZE THE COURT TO CONSIDER OTHER TREATIES, DECLARATIONS AND INTERNATIONAL INSTRUMENTS WHICH ARE EVIDENCE OF CUSTOMARY INTERNATIONAL LAW WHEN INTERPRETING THE AMERICAN CONVENTION

The Preamble's references are echoed in Article 29, which directs the Court to consider the same instruments when interpreting the American Convention; Article 29 establishes guidelines for interpretation of the Convention. It states, in part:

No provision of this Convention shall be interpreted as:

. . .

b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;

c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.
(Emphasis added.)

According to the organizational structure defined in the Convention, the Court is one of two organs of the OAS which may formally interpret the Convention, the other being the Inter-American Commission on Human Rights. Therefore, the guidelines in Article 29 apply to the Court, when acting both in its adjudicatory and its advisory capacities. Thus, even when exercising its advisory jurisdiction, the Court must consider Article 29.

Article 29 mandates that the Court construe other conventions and declarations when interpreting the American Convention.27 Article 29(b) provides that the Court's interpretation of the American Convention may not be interpreted in a manner which would restrict any right accorded to a state party by another convention.28 This requires the Court to consider any convention relating to human rights to which an American state is party. Thus, Articles 29(b) and 64(1) of the American Convention require the Court to interpret conventions which concern human rights in the Americas, whether adopted within or outside the framework of the inter-American system, and whether adopted by only American states or by American and other states.29

Further, Article 29(d) recognizes the value for the promotion of human rights of international instruments that are not legally binding. It precludes an interpretation of the Convention that would exclude or limit the effect of the American Declaration30 or "other international acts of the same nature." Article 29(d) does not limit the "other international acts of the same nature" to those within the inter-American system. in fact, no limitation is placed on the "other international acts" the Court can consider, except that they be of the same nature as the American Declaration.31

For example, the Universal Declaration of Human Rights is an international act of the same nature as the American Declaration.32 Although not a treaty itself, it was adopted without dissent by the members of the UN, and it is accepted internationally as the full articulation of the rights contemplated in Article 55 of the U.N. Charter.33 It is also recognized as a source of customary international law.34 Thus, Article 29(d) provides that the Court will interpret the American Covenant in a way which does not exclude or limit the effect of the American or Universal Declaration.

Article 29(c) provides that the Court shall interpret a provision of the American Convention in a manner which does not "preclude other rights and guarantees that are inherent in the human personality." It implicity imposes on the Court a duty to examine a variety of international instruments and to discern from them an international norm of the fundamental human rights. The Court's inspection of such international instruments can include those already cited herein, as well as human rights agreements of the United Nations35 and the Council of Europe system.36

Indeed, this Court has already examined "generally recognized principles of international law and international practice."37 In its first opinion, In the Matter of Viviana Gallardo,38 this Court considered such principles in regard to a party's waiver of the defense of failure to exhaust administrative remedies. The Court derived the relevant legal precedent from the opinion of the European Court of Human Rights in DeWilde, Ooms and Versyp v. Belgium.39

This Court should not limit its consideration of the laws and cases of other regional organizations and tribunals to questions of procedure. It should consult those sources for guidance on substantive human rights. Human rights have been recognized as "a kind of minimum international standard."40 The development of human rights on a substantive level has been the result of "considerable conceptual borrowing or cross fertilization41 among worldwide, regional and specialized organizations.42 The importance of the interaction among the various systems is recognized by the European Commission of Human Rights.43 In the Arrowsmith Case,44 the European Commission of Human Rights noted that the applicant supported his position with references to U.N. Charter and to a case decided by the United States Supreme Court. In Paton v. United Kingdom,45 the European Commission expressly compared a provision of the European Convention with the comparable provision of the American Convention for the purpose of explaining a provision of the European Convention.

Similarly, this Court is urged to "look for guidance to the development already achieved under the European Convention on Human Rights"46 and under the other regional and international pronouncements of human rights. In this way, the Court can articulate those rights inherent in the human personality according to international norms, and comply with Article 29(c)s of the American Convention.

Thus, these three provisions of Article 29 require the Court to interpret the American Convention in conjunction with (1) conventions executed either within or outside the framework of the inter-American system, to which one or more American states are parties, (2) the American Declaration and other instruments of the same nature, and (3) conventions, declarations, or other instruments which articulate rights "inherent in the human personality," and preventing a construction of the American Convention which contravenes an American state's obligations under another international convention, or conflicts with customary international laws of human rights.

D. THE PREPARATORY WORK OF THE AMERICAN CONVENTION INDICATES THAT THE COURT MAY CONSIDER THE EUROPEAN CONVENTION AND UNITED NATIONS TREATIES ON HUMAN RIGHTS WHEN INTERPRETING THE AMERICAN CONVENTION

The preparatory work of the American Convention47 demonstrates that the parties contemplated that the Court have the power to consult the European Convention on Human Rights and various UN treaties and instruments to illuminate the meaning of the American Convention. The drafters of the American Convention considered inter alia the European Convention on Human Rights,48 the U.N. Charter, the Universal Declaration, the International Covenant (Political), the International Covenant (Economic), and the Optional Protocol to the International Covenant on Civil and Political Rights,49 when drafting the American Convention. The Committee on Juridical Political Affairs of the Council of the OAS,

desiring to avoid the danger of possible conflicts between worldwide and regional standards or institutions, decided to request the Council of the Organization to consult with governments of the member states in regard to a single universal system of regulation of human rights or, on the contrary, the possibility of the coexistence and coordination of the worldwide and regional conventions on the same rights.50

The Council ordered comparative studies of these documents and the Draft Convention on Human Rights. It resulted in an opinion entitled, "Comparative Study of the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and the Draft Inter-American Conventions on Human Rights."51 Considering this study, the Council of the OAS,

[asked] "the Inter-American Commission on Human Rights to draw up a revised and complete text of a preliminary draft convention, containing the amendments and changes set forth in its opinion... and that that text be in harmony with the International Covenants of the United Nations, in accordance with the Opinion dated April 11, 1968." [OAS Doc. OEA/Ser.G/IV/C-i-837, Rev 3.]52

Thus, the final draft of the American Convention was based significantly on the European Convention and on various UN conventions and conevants.

The preparatory work for the American Convention confirms that to understand properly the provisions of the American Convention, and to prevent conflict between interpretations of ostensibly the same rights,53 the Court should consider the American Convention with other international instruments which influenced and contributed to its drafting.

V. OTHER OBLIGATIONS OF MEMBER STATES OF THE OAS REQUIRE THAT THE COURT INTERPRET

TREATY OBLIGATIONS MADE OUTSIDE THE INTER-AMERICAN SYSTEM

The O.A.S. Charter authorized the member states to draft the American Convention on Human Rights. As the foundation of the American Convention, the O.A.S. Charter should be considered in order to understand the Convention.54 Articles 1, 4 and 137 of the O.A.S. Charter declare:

Article 1

Within the United Nations, the Organization of American States is a regional agency.

Article 4

The Organization of American States, in order to put into practice the principles on which it is founded and to fulfill its regional obligations under the Charter of the United Nations, proclaims the following essential purposes:

a) To strengthen the peace and security of the continent;

. . .

d) To seek the solution of political, juridical and economic problems that may arise among them; and

e) To promote, by cooperative action, their economic, social and cultural development.

Article 137

None of the provisions of this Charter shall be construed as impairing the rights and obligations of the Member States under the Charter of the United Nations.
(Emphasis added).

The O.A.S. Charter recognizes the OAS as a regional agency of the UN, bound to fulfill regional obligations to the UN. It specifically views the obligations of OAS member states under the O.A.S., Charter as subordinate to their obligations under the U.N. Charter. The U.N. Charter contains two corollary provisions concerning regional organizations and other obligations of member states: Articles 52(1) & 103. Article 52(1) states:

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purpose and Principles of the United Nations.
(Emphasis added).

Article 103 provides:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
(Emphasis added).

The various treaties containing human rights provisions, sponsored by the UN and its specialized agencies, may constitute obligations of the members of the UN who are also members of the OAS. According to Articles 1, 4 & 137 of the O.A.S. Charter, and Articles 52(1) & 103 of the U.N. Charter, an OAS member must adhere to the UN's human rights provisions over any conflicting OAS provisions. These rules for resolving a conflict between obligations under the O.A.S. Charter, the U.N. Charter, and other U.N. sponsored obligations require the Court to review the U.N. instruments when construing the American Convention. The Court's opinion will guide member states so they may avoid conflicts between the two charters' obligations.

VI. ARTICLE 64(1) GRANTS THE COURT JURISDICTION TO INTERPRET OTHER TREATIES WITHIN OR OUTSIDE

THE INTER-AMERICAN SYSTEM, RATIFIED BY AMERICAN AND OTHER STATES,

WHICH CONCERN THE PROTECTION OF HUMAN RIGHTS IN THE AMERICAN STATES

In addition to garanting the Court jurisdiction to interpret the American Convention, in conjunction with other international instruments and norms, Article 64(1) permits the court to render an advisory opinion concerning any treaty concerning human rights in the American states. The ordinary meaning55 of Article 64(1) demonstrates that the Court may interpret any treaty, convention, covenant, or agreement reflecting recognized principles of human rights. The treaty may be one may concern human rights exclusively, or it may concern human rights and other subjects. Article 64(1) of the American Convention provides, in part:

The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.
(Emphasis added).

The Court's jurisdiction to render advisory opinions about international instruments, other that the American Convention, includes jurisdiction to interpret treaties, covenants and other agreements which reflect recognized principles of human rights codified in treaties. Article 64(1) allows the Court to consult on matters "regarding the interpretation of this Convention or of other treaties..." This phrase indicates that the drafters of the provision considered the Convention one type of treaty. Indeed, a convention is in the nature of a treaty, as is a convenant or a charter: all are contractual agreements which impose binding legal obligations upon their parties. Since the similarity between conventions and treaties is their contractual nature, and reasonable interpretation of Article 64 is that it grants the Court jurisdiction to render opinions about instruments entitled "treaty", instruments which are binding on the parties, and other agreements which reflect recognized principles of human rights codified in treaties.

The Court may interpret any "treaty concerning the protection of human rights in the American states," whether or not only American states are parties to it. This may be understood from a grammatical analysis of the phrase. As a general rule of grammar, a prepositional phrase immediately follows that which it modifies. The phrase "in the American states" immediately follows and, therefore, modifies "the protection of human rights," and not "other treaties." Were the phrase "in the American states" to modify treaties, it would cause ambituity for treaties either are "of" or are concluded "among" the party states; treaties are not "in" the party states. The applications of a treaty and its protections occur in states. A treaty may concern human rights in the American states whether the treaty is bilateral, regional or international in scope, if it applies in the American states. Thus, "in the American states" refers only to the place of protection of human rights, not to the location of the parties to the treaties or the subject of the treaties.

If consultations to the Court were to be limited to treaties within the inter-American system or among only American states, Article 64(1) would have been written "of other treaties among the American states concerning the protection of human rights." Alternatively, language would have been included in Article 64 or elsewhere in the American Convention defining the treaties subject to the Court's interpretation. Neither the language of Article 64(1) nor any other provision of the Convention indicates its parties contemplated limiting the Court's advisory jurisdiction to treties within the inter-American system or among only American states. Thus, pursuant to the ordinary meaning of Article 64(1), the Court may interpret any treaty, bilateral, regional, or international, ratified by an American state and any other state, which concerns the protection of human rights in the geographic location of the Americas.

Furthermore, the Court may interpret any treaty among American and other states which concerns the protection of human rights, even if the subject of the treaty is not exclusively the protection of human rights. The phrase "treaty concerning the protection of human rights" is not qualified. It does not limit the subject of the treaty exclusively to human rights; other subjects may be addressed in the treaty. Thus, the Court may interpret provisions of a treaty protecting human rights that apply in the American states.

According to the foregoing interpretation of Article 64(1), the treaties available for interpretation by the Court may include, but are not limited to, the O.A.S. Charter, the U.N. Charter, the International Covenant (Economic), the International Covenant (Political), and other conventions of other specialized agencies of the UN, such as UNESCO and the International Labor Organization, as well as all treaties of the UN concerning human rights. They have been ratified by one or more American states and they apply in the American states. Provisions of them concern human rights. Thus, they constitute "other treaties concerning the protection of human rights in the American states," subject to interpretation by the Court, pursuant to its advisory jurisdiction as set fort in Article 64(1).

VII. THE PURPOSE OF THE AMERICAN CONVENTION IS SERVED BOTH BY THE COURT'S INTERPRETATION OF THE

AMERICAN CONVENTION IN CONJUNCTION WITH TREATIES AND DECLARATIONS, RATIFIED OR ADOPTED BY AMERICAN

AND OTHER STATES, AND BY THE COURT'S INTERPRETATION OF OTHER TREATIES CONCERNING

THE PROTECTION OF HUMAN RIGHTS IN THE AMERICAN STATES

The Court's jurisdiction to interpret the American Convention, with consideration of other treaties, declarations and evidence of customary international law, and to interpret other bilateral, regional, or international treaties concerning the protection of human rights in the American states, serves the purpose of the American Convention. The purpose of the American Convention is to promote and protect observance of human rights. Clarification of obligations provided for in international agreements assists states to effectively and faithfully fulfill their commitments to respect human rights.

The Court's interpretations of the American Convention will be strengthened by its consideration of the broad range of instruments cited above. These decisions will establish the Court's credibility, encouraging states and organs to consult the Court and heed its advice.

The Court's power to interpret other treaties to which American states are parties also serves the purposes of the American Convention. It advises the states of their obligations under other treaties affecting human rights. Although the Court's advice would not bind the entity submitting the request, ti would constitute "moral and scientific authority,"56 which might influence a state's conduct.

Thus, the Court's jurisdiction to interpret the American Convention and to interpret other treaties, agreements which reflect recognized principles of human rights codified in treaties, and customary international laws, pursuant to Article 64, serve the ultimate object and purpose of the American Convention. The Court will be able to prevent violations of human rights and promote their observance, thereby realizing the inherent dignity of each human being and securing liberty and justice throughout the American states.

VIII. CONCLUSION

The Preamble, Article 29, and the preparatory work of the American Convention refer to the international human rights treaties, covenants, conventions, declarations, and customary international laws which contributed to the articulation of human rights in the American Convention. The Preamble, Article 29 and the preparatory work indicate that the human rights provisions of the American Convention are best understood in conjuction with the other international instruments. Moreover, Article 29 requires the Court to construe the American Convention in a manner which respect the obligations of member states under other conventions, the American Declaration and the Universal Declaration, and customary international law.

The O.A.S. and U.N. Charters confirm this view of the Court's advisory jurisdiction. They require the Court to assess the members' obligations under the U.N. Charter and other UN treaties, so as to preclude an interpretation or application of the American Convention which would contravene the members obligations under the U.N. Charter and other UN treaties.

The Court also may interpret other treaty obligations of member states. These treaty obligations are not limited to those within the inter-American system. Rather, they include any treaty, convention, covenant, declaration, or customary international law to which a member state may be required to adhere.

Thus, the Court's twofold advisory jurisdiction, to interpret the American Convention and to interpret other treaties concerning human rights in the American states, under Article 64(1), serves the purpose of the American Convention: to promote and protect human rights in the American states, thereby realizing the inherent dignity of all human brings and furthering the principles of liberty and justice.

Respectfully submitted,

By:_________________________________
/s/ CAROLINE G. HARRIS
Webster & Sheffield

By:________________________________
/s/ AMY YOUNG-ANAWATY
International Human Rights
Law Group

Home / Treaties / Search / Links