Requested by the Inter-American Commission on Human Rights
Carlos Roberto Reina, President
Pedro Nikken, Vice President
Huntley Eugene Munroe, Judge
Máximo Cisneros, Judge
Rodolfo E. Piza E., Judge
Thomas Buergenthal, Judge
Charles Moyer, Secretary
Manuel Ventura, Deputy Secretary
THE COURT, composed as above, gives the following Advisory Opinion:
1. The Inter-American Commission on Human Rights ( hereinafter cited as " the Commission " ), by a cable dated June 28, 1982, requested an advisory opinion of the Inter-American Court of Human Rights.
2. By notes dated July 2, 1982, the Secretary, in accordance with a decision of the Court acting pursuant to Article 52 of its Rules of Procedure, requested observations of all of the Member States of the Organization of American States as well as, through the Secretary General, of all of the organs referred to in Chapter X of the Charter of the OAS.
3. The President of the Court fixed August 23, 1982 as the time-limit for the submission of written observations or other relevant documents.
4. Responses to the Secretary's request were received from the following states: Costa Rica, Mexico, Saint Vincent and the Grenadines and the United States of America. In addition, the following OAS organs responded: the Permanent Council, the Inter-American Juridical Committee and the General Secretariat. The majority of the responses included substantive observations on the issues raised in the advisory opinion.
5. Furthermore, the following organizations offered their points of view on the request as amici curiae: the International Human Rights Law Group and the Urban Morgan Institute for Human Rights of the University of Cincinnati College of Law.
6. The Court, meeting in its Sixth Regular Session, set a public hearing for Monday, September 20, 1982 to receive the oral arguments that the Member States and the organs of the OAS might wish to give regarding the request for the advisory opinion.
7. In the course of the public hearing, oral arguments were addressed to the Court by the following representatives:
For the Inter-American Commission on Human Rights:
Marco Gerardo Monroy Cabra, Delegate and President
For Costa Rica:
Manuel Freer Jimenez, Adviser and Procurador of the Republic.
8. The Commission submitted the following question to the Court:
"From what moment is a state deemed to have become a party to the American Convention on Human Rights when it ratifies or adheres to the Convention with one or more reservations; from the date of the deposit of instrument of ratification or adherence or upon the termination of the period specified in Article 20 of the Vienna Convention on the Law of Treaties?"
9. The Commission notes that its request calls for the interpretation of Articles 74 and 75 of the American Convention on Human Rights ( hereinafter cited as " the Convention " ). It submits, in this connection, that the issue presented to the Court falls within the Commission's sphere of competence, as that phrase is used in Article 64 of the Convention. To substantiate this contention, the Commission points to the power vested in it by Articles 33, 41 ( f ), and 44 through 51 of the Convention as well as in Articles 1, 19 and 20 of the Statute of the Commission. The Commission emphasizes that in order to be able to exercise its functions, it must distinguish between States that are parties to the Convention and those that are not.
10. Articles 74 and 75 of the Convention read as follows:
1. This Convention shall be open for signature and ratification by or adherence of any member state of the Organization of American States.
2. Ratification of or adherence to this Convention shall be made by the deposit of an instrument of ratification or adherence with the General Secretariat of the Organization of American States. As soon as eleven states have deposited their instruments of ratification or adherence, the Convention shall enter into force. With respect to any state that ratifies or adheres thereafter, the Convention shall enter into force on the date of the deposit of its instrument of ratification or adherence.
3. The Secretary General shall inform all member states of the Organization of the entry into force of the Convention.
This Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969."
11. In addressing the request of the Commission, the Court must resolve a number of preliminary issues bearing on it. One of them has to do with the question whether the Court is at all competent to hear this request, considering that the Secretary General of the OAS has been assigned depositary functions relating to this Convention ( see Arts. 74, 76, 78, 79 and 81 ), and considering further that, in the practice of the OAS, disputes concerning ratification of treaties, their entry into force, reservations attached to them, etc., have been dealt with traditionally through consultation between the Secretary General and the Member States. ( See " Standards on Reservations to Inter-American Multilateral Treaties, " OAS/AG/RES. 102 ( III-0/73 ). See also, M.G. Monroy Cabra, Derecho de los Tratados at 58-72 ( Bogota, Colombia, 1978 ); J.M. Ruda, " Reservations to Treaties, " 146 Recueil des Cours 95, at 128 ( 1973 ). )
12. The Court has no doubt whatsoever that it is competent to render the advisory opinion requested by the Commission. Article 64 of the Convention is clear and explicit in empowering the Court to render advisory opinions " regarding the interpretation of this Convention, " which is precisely what the Commission's request seeks to obtain. Moreover, Article 2 ( 2 ) of the Statute of the Court, which was approved by the General Assembly of the OAS at the Ninth Regular Session in October 1979, declares that the Court's " advisory jurisdiction shall be governed by the provisions of Article 64 of the Convention. "
13. It must be emphasized also that, unlike other treaties of which the Secretary General of the OAS is the depositary, the Convention establishes a formal judicial supervisory process for the adjudication of disputes arising under that instrument and for its interpretation. The Court's competence in this regard finds expression not only in the language of Articles 62, 63, 64, 67 and 68, but also in Article 33 ( b ), which confers on the Court " competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention. " This competence is reinforced by Article 1 of the Court's Statute, which declares that the Court is an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights. It is thus readily apparent that the Court has competence to render an authoritative interpretation of all provisions of the Convention, including those relating to its entry into force, and that the Court is the most appropriate body to do so.
14. It must be determined next whether the Commission has standing to request the particular advisory opinion it has asked the Court to render. In this regard, the Court notes that the Convention, in conferring the right to request advisory opinions, distinguishes between Member States of the OAS and organs of the Organization. Under Article 64 all OAS Member States, whether or not they have ratified the Convention, have standing to seek an advisory opinion " regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. " OAS organs enjoy the same right, but only " within their spheres of competence. " Thus, while OAS Member States have an absolute right to seek advisory opinions, OAS organs may do so only within the limits of their competence. The right of OAS organs to seek advisory opinions is restricted consequently to issues in which such entities have a legitimate institutional interest. While it is initially for each organ to decide whether the request falls within its spheres of competence, the question is, ultimately, one for this Court to determine by reference to the OAS Charter and the constitutive instrument and legal practice of the particular organ.
15. With reference to the instant request, the Court notes, first, that the Commission is one of the organs listed in Chapter X of the OAS Charter ( OAS Charter, Art. 51( e ) ). Moreover, the powers conferred on the Commission qua organ of the OAS are spelled out in Article 112 of the OAS Charter, which reads as follows:
"There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.
An 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."
Finally, Articles 33, 41 and 44 through 51 of the Convention, and Articles 1, 19 and 20 of the Statute of the Commission confer upon it extensive powers. The Commission's competence to exercise these powers depends, in part, on a prior determination whether it is dealing with a State which either has or has not ratified the Convention. Article 112 of the OAS Charter, Article 41 of the Convention, and Articles 1, 18 and 20 of its Statute empower the Commission " to promote the observance and defense of human rights " and to serve " as a consultative organ of the Organization in this matter. " The Commission exercises these powers in relation to all OAS Member States, whether or not they have ratified the Convention; it has even more specific and more extensive powers in relation to the States Parties to the Convention. ( Convention, Arts. 33, 41( f ) and 44-51; Statute of the Commission, Art. 19. )
16. It is obvious, therefore, that the Commission has a legitimate institutional interest in a question, such as the one that it presented, which relates to the entry into force of the Convention. The Court accordingly holds that the requested advisory opinion falls within the Commission's sphere of competence. Furthermore, given the broad powers relating to the promotion and observance of human rights which Article 112 of the OAS Charter confers on the Commission, the Court observes that, unlike some other OAS organs, the Commission enjoys, as a practical matter, an absolute right to request advisory opinions within the framework of Article 64 ( 1 ) of the Convention.
17. Having resolved these preliminary issues, the Court is now in a position to address the specific question submitted to it by the Commission, which wishes to know when the Convention is deemed to enter into force for a State that ratifies or adheres to the Convention with a reservation.
18. In answering this question, the Court notes that two provisions of the Convention provide a starting point for its inquiry. The first is Article 74( 2 ), which reads as follows:
"Ratification of or adherence to this Convention shall be made by the deposit of an instrument of ratification or adherence with the General Secretariat of the Organization of American States. As soon as eleven states have deposited their instruments of ratification or adherence, the Convention shall enter into force. With respect to any state that ratifies or adheres thereafter, the Convention shall enter into force on the date of the deposit of its instrument of ratification or adherence."
The second provision is Article 75. It declares that:
"This Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969."
19. The language of Article 74( 2 ) is silent on the issue whether it applies exclusively to ratifications and adherences which contain no reservations or whether it also applies to those with reservations. Furthermore, whether and to what extent Article 75 helps to resolve the question before the Court can be answered only following an analysis of that stipulation as well as of other relevant provisions of the Convention in their context and in the light of the object and purpose of the Convention ( Vienna Convention on the Law of Treaties, hereinafter cited as " Vienna Convention, " Art. 31 ) and, where necessary, by reference to its drafting history. ( Vienna Convention, Art. 32. ) Moreover, given the reference in Article 75 to the Vienna Convention, the Court must also examine the relevant provisions of that instrument.
20. The reference in Article 75 to the Vienna Convention raises almost as many questions as it answers. The provisions of that instrument dealing with reservations provide for the application of different rules to different categories of treaties. It must be determined, therefore, how the Convention is to be classified for purposes of the here relevant provisions of the Vienna Convention, keeping in mind the language of Article 75 and the purpose it was designed to serve.
21. The provisions of the Vienna Convention that bear on the question presented by the Commission read as follows:
"Article 19.- Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
a ) the reservation is prohibited by the treaty;
b ) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
c ) in cases not falling under subparagraphs ( a ) and ( b ), the reservation is incompatible with the object and purpose of the treaty.
Article 20.- Acceptance of an objection to reservations
1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides.
a ) acceptance of another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;
b ) an objection of another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;
c ) an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
5. For the purpose of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later."
22. Turning first to Article 19, the Court concludes that the reference in Article 75 to the Vienna Convention was intended to be a reference to paragraph ( c ) of Article 19 of the Vienna Convention. Paragraphs ( a ) and ( b ) are inapplicable on their face since the Convention does not prohibit reservations and since it does not specify the permissible reservations. It follows that Article 75 must be deemed to permit States to ratify or adhere to the Convention with whatever reservations they wish to make, provided only that such reservations are not " incompatible with the object and purpose " of the Convention.
23. The foregoing interpretation of Article 75 is confirmed by the preparatory work of the Convention, which indicates that its drafters wished to provide for a flexible reservations policy. As is well known, the Convention was adopted at the Specialized Inter-American Conference on Human Rights, which met in San José, Costa Rica, from November 7 to 22, 1969. ( The proceedings and documents of this Conference are contained in Conferencia Especializada Interamericana sobre Derechos Humanos, San José, Costa Rica, 7-22 de noviembre de 1969, Actas y Documentos, OEA/Ser. K/XVI/1.2, Washington, D.C. 1973 ( hereinafter cited as " Actas y Documentos " ). ) The San Jose Conference had before it, as its basic working document, the Draft Inter-American Convention on Human Rights, prepared by the Inter-American Commission on Human Rights. ( The Spanish text of the draft is reproduced in Actas y Documentos at 13; the English text can be found in 1968 Inter-American Yearbook on Human Rights at 389 ( 1973 ). ) Article 67 of this text dealt with reservations and read as follows:
"1. Any State Party, at the time of the deposit of its instrument of ratification of or adherence to this Convention, may make a reservation if a constitutional provision in force in its territory should be contrary to any provision of this Convention. Every reservation should be accompanied by the text of the constitutional provision referred to.
2. A provision that has been the subject of a reservation shall not be in force between the reserving state and other States Parties. In order for the reservation to have this effect, it shall not be necessary for the other States Parties to accept it."
24. Already in their preliminary comments on the Draft Convention, a number of governments found Draft Article 67 too restrictive. The clearest articulation of this view can be found in the following statement submitted by the Government of Argentina;
"Article 67, paragraph 1. The system of reservations established in this Article is based exclusively on the existence of contrary constitutional provisions of the State making the reservation, and is not acceptable, since it restricts the sovereign power of the States to make the reservations.
It is accordingly suggested, as more desirable, to have a broader formula similar to that contained in Article 86 of the draft prepared by the Inter-American Council of Jurists, according to which there is a right to make a reservation if a constitutional or legal provision in force in the State concerned is contrary to a provision of the Convention.
Article 67, paragraph 2. The elimination of this paragraph is suggested since it departs from the system provided for in the Draft Convention on the Law of Treaties recently prepared in Vienna ( United Nations Conference on the Law of Treaties, April 22 to May 24, 1968 ). In the proposed Article 67, " acceptance " is eliminated as an element of the system and it is proposed that the reservation operate between the " reserving State and the other States Parties " from the very time it is formulated.
It does not appear wise to make innovations in this difficult subject when a worldwide conference has prepared a different system and, moreover, one that is more suited to international practice and jurisprudence. ( Actas y Documentos at 48. )"
25. Similar views were expressed by other Governments, either in their official comments or in their interventions at the Conference. Like Argentina, a number of States also sought to amend Draft Article 67 by adding the words " and legal " after " constitutional. " This effort, which would have significantly liberalized the right to make reservations, obtained the approval of the Working Group of Committee II of the San Jose Conference, but was defeated subsequently in Committee II because it was deemed to conflict with Article 1 ( 2 ) of the Draft Convention, now Article 2 of the Convention. ( Actas y Documentos at 365-66 and 379. ) The earlier attempt by the U.S. Delegation to substitute a reference to the Vienna Convention for the disputed provision failed in the Working Group ( Actas y Documentos at 379 ) but succeeded at the third plenary meeting of the Conference, where the present text of Article 75 was adopted on the motion of Uruguay. ( Actas y Documentos at 459. ) In short, it is impossible to read the drafting history of the Convention without recognizing that the primary purpose of the reference to the Vienna Convention in Article 75 was to provide for a system that would be very liberal in permitting States to adhere to the Convention with reservations.
26. Having concluded that States ratifying or adhering to the Convention may do so with any reservations that are not incompatible with its object and purpose, the Court must now determine which provisions of Article 20 of the Vienna Convention apply to reservations made to the Convention. The result of this inquiry will of necessity also provide the answer to the question posed by the Commission. This is so because, if under the Vienna Convention reservations to the Convention are not deemed to require acceptance by the other States Parties, then for the here relevant purposes Article 74 of the Convention applies and a State ratifying or adhering to it with or without a reservation is deemed to be a State Party as of the date of the deposit of the instrument of ratification or adherence. ( Vienna Convention, Art. 20 ( 1 ). ) On the other hand, if acceptance of the reservation is required under the Vienna Convention, a reserving State would be deemed to become a State Party only on the date when at least one other State Party has accepted the reservation either expressly or by implication. ( Vienna Convention, Arts. 20 ( 4 )( c ) and 20 ( 5 ). )
27. In the opinion of the Court, only paragraph 1 or paragraph 4 of Article 20 of the Vienna Convention can be deemed to be relevant in applying Articles 74 and 75 of the Convention. Paragraph 2 of Article 20 is inapplicable, inter alia, because the object and purpose of the Convention is not the exchange of reciprocal rights between a limited number of States, but the protection of the human rights of all individual human beings within the Americas, irrespective of their nationality. Moreover, the Convention is not the constituent instrument of an international organization. Therefore, Article 20 ( 3 ) is inapplicable.
28. In deciding whether the Convention envisages the application of paragraph 1 or paragraph 4 of Article 20 of the Vienna Convention, the Court notes that the principles enunciated in Article 20 ( 4 ) reflect the needs of traditional multilateral international agreements which have as their object the reciprocal exchange, for the mutual benefit of the States Parties, of bargained for rights and obligations. In this context, and given the vastly increased number of States comprising the international community today, the system established by Article 20 ( 4 ) makes considerable sense. It permits States to ratify many multilateral treaties and to do so with the reservations they deem necessary; it enables the other contracting States to accept or reject the reservations and to determine whether they wish to enter into treaty relations with the reserving State; and it provides that as soon as at least one other State Party has accepted the reservation, the treaty enters into force with respect to the reserving State.
29. The Court must emphasize, however, that modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. The distinct character of these treaties has been recognized, inter alia, by the European Commission on Human Rights, when it declared
"that the obligations undertaken by the High Contracting Parties in the European Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves. ( Austria vs Italy, Application No. 788/60, 4 European Yearbook of Human Rights 116, at 140 ( 1961 ). )"
The European Commission, relying on the preamble to the European Convention emphasized, furthermore,
"that the purpose of the High Contracting Parties in concluding the Convention was not to concede to each other reciprocal rights and obligations in pursuance of their individual national interests but to realize the aims and ideals of the Council of Europe...and to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideas, freedom and the rule of law. ( Ibid. at 138. )"
30. Similar views about the nature of modern humanitarian treaties have been enunciated by the International Court of Justice in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ( 1951 I.C.J. 15 ). They find expression also in the Vienna Convention itself, particularly in Article 60 ( 5 ). ( See generally E. Schwelb, " The Law of Treaties and Human Rights, " 16 Archiv des Volkerrechts 1 ( 1973 ), reprinted in Toward World Order and Human Dignity at 262 ( W.M. Reisman & B. Weston, eds. 1976 ). )
31. These views about the distinct character of humanitarian treaties and the consequences to be drawn therefrom apply with even greater force to the American Convention whose first two preambular paragraphs read as follows:
"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."
32. It must be emphasized also that the Convention, unlike other international human rights treaties, including the European Convention, confers on private parties the right to file a petition with the Commission against any State as soon as it has ratified the Convention. ( Convention, Art. 44. ) By contrast, before one State may institute proceedings against another State, each of them must have accepted the Commission's jurisdiction to deal with inter-State communications. ( Convention, Art. 45. ) This structure indicates the overriding importance the Convention attaches to the commitments of the States Parties vis-a-vis individuals, which can be readily implemented without the intervention of any other State.
33. Viewed in this light and considering that the Convention was designed to protect the basic rights of individual human beings irrespective of their nationality, against States of their own nationality or any other State Party, the Convention must be seen for what in reality it is; a multilateral legal instrument or framework enabling States to make binding unilateral commitments not to violate the human rights of individuals within their jurisdiction.
34. In this context, it would be manifestly unreasonable to conclude that the reference in Article 75 to the Vienna Convention compels the application of the legal regime established by Article 20 ( 4 ), which makes the entry into force of a ratification with a reservation dependent upon its acceptance by another State. A treaty which attaches such great importance to the protection of the individual that it makes the right of individual petition mandatory as of the moment of ratification, can hardly be deemed to have intended to delay the treaty's entry into force until at least one other State is prepared to accept the reserving State as a party. Given the institutional and normative framework of the Convention, no useful purpose would be served by such a delay.
35. Accordingly, for the purpose of the present analysis, the reference in Article 75 to the Vienna Convention makes sense only if it is understood as an express authorization designed to enable States to make whatever reservations they deem appropriate, provided the reservations are not incompatible with the object and purpose of the treaty. As such, they can be said to be governed by Article 20 ( 1 ) of the Vienna Convention and, consequently, do not require acceptance by any other State Party.
36. The Court notes, in this connection, that Article 20 ( 1 ), in speaking of " a reservation expressly authorized by a treaty, " is not by its terms limited to specific reservations. A treaty may expressly authorize one or more specific reservations or reservations in general. If it does the latter, which is what the Court has concluded to be true of the Convention, the resultant reservations, having been thus expressly authorized, need not be treated differently from expressly authorized specific reservations. The Court wishes to emphasize, in this connection, that unlike Article 19 ( b ), which refers to " special reservations, " Article 20 ( 1 ) contains no such restrictive language, and therefore permits the interpretation of Article 75 of the Convention adopted in this opinion.
37. Having concluded that reservations expressly authorized by Article 75, that is, reservations compatible with the object and purpose of the Convention, do not require acceptance by the States Parties, the Court is of the opinion that the instruments of ratification or adherence containing them enter into force, pursuant to Article 74, as of the moment of their deposit.
38. The States Parties have a legitimate interest, of course, in barring reservations incompatible with the object and purpose of the Convention. They are free to assert that interest through the adjudicatory and advisory machinery established by the Convention. They have no interest in delaying the entry into force of the Convention and with it the protection that treaty is designed to offer individuals in relation to States ratifying or adhering to the Convention with reservations.
39. Since the instant case concerns only questions bearing on the entry into force of the Convention, the Court does not deem it necessary to deal with other issues that might arise in the future in connection with the interpretation and application of Article 75 of the Convention and which, in turn, might require the Court to examine the provisions of the Vienna Convention applicable to reservations not treated in this opinion.
40. For these reasons, with regard to the interpretation of Articles 74 and 75 of the American Convention on Human Rights concerning the effective date of the entry into force of the Convention in relation to a State which ratifies or adheres to it with one or more reservations,
THE COURT IS OF THE OPINION
"By unanimous vote, that the Convention enters into force for a State which ratifies or adheres to it with or without a reservation on the date of the deposit of its instrument of ratification or adherence.
Done in English and Spanish, the English text being authentic, at the seat of the Court in San Jose, Costa Rica, this 24th day of September, 1982."
CARLOS ROBERTO REINA
HUNTLEY EUGENE MUNROE
RODOLFO E. PIZA E.