.....Costa Rica, the US, and Venezuela responded with their views that the Court did not have the authority to interpret this expression of human rights in the Americas—because it is not a treaty. Peru and Uruguay disagreed. Their view was that the juridical nature of the American Declaration is such that the Court has authority to render advisory opinions on its proper interpretation. Otherwise, the region's human rights provisions would be meaningless.
.....The first issue for the Court was whether it possessed the jurisdiction to interpret a 1948 Organization of American States Declaration concerning human rights. Unlike the 1978 OAS treaty concerning human rights, the earlier Declaration at issue in this case was not a treaty. The Court nevertheless determined that the Declaration's "juridical" or legal nature, in relation to the later treaty (American Convention), did establish legal norms—vesting this international human rights court with the requisite authority (a) to interpret the Declaration, and (b) to define how it applies to OAS member States.
.....As you read the following opinion, consider the varied characterizations of the Declaration by the OAS member governments that responded to the OAS request for State interpretations to aid the Court in its opinion.
.....The numbered paragraphs are those of the Court. Citations have been omitted, and emphasis has been supplied, in certain passages of this edited opinion.
[Court's Opinion.] 1. ... [T]he Government of the Republic of Colombia (hereinafter "the Government") submitted to the Inter-American Court of Human Rights (hereinafter "the Court") a request for an advisory opinion on the interpretation of Article 64 of the [1978] American Convention on Human Rights (hereinafter "the Convention" or "the American Convention") in relation to the [1948] American Declaration of the Rights and Duties of Man (hereinafter "the Declaration" or "the American Declaration").
2. The Government requests a reply to the following questions:
Does Article 64 [see paragraph 20 below] authorize the Inter-American Court of Human Rights to render advisory opinions at the request of a member state or of one of the organs of the OAS, regarding the interpretation of the American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States in Bogota in 1948?
The Government adds:
The Government of Colombia understands, of course, that the [1948] Declaration is not a treaty. But this conclusion does not auto-matically answer the question. It is perfectly reasonable to assume that the interpretation of the human rights provisions contained in the [1948] Charter of the OAS ... involves, in principle, an analysis of the rights and duties of man proclaimed by the [1948] Declaration, and thus requires the determination of the normative status of the Declaration within the legal framework of the inter-American system for the protection of human rights.
The applicant government points out that
(1) for the appropriate functioning of the inter-American system for the protection of human rights, it is of great importance to know what the juridical status of the Declaration is, whether the Court has jurisdiction to interpret the Declaration, and if so, what the scope of its jurisdiction is within the framework of Article 64 of the Convention....
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11. In
its written observations, the Government of Costa Rica believes
that notwithstanding its great success and nobility, the American
Declaration of the Rights and Duties of Man is not a treaty as
defined by international law, so Article 64 of the American Convention
does not authorize the Inter-American Court to interpret the
Declaration. Nevertheless, that could not in any way limit the
Court's possible use of the Declaration and its precepts to interpret
other, related juridical instruments or a finding that many of
the rights re- cognized therein have become international customary
law.
12. The Government of
the United States of America believes The American Declaration
of the Rights and Duties of Man represents a noble statement
of the human rights aspirations of the American States.
.....Unlike the American Convention,
however, it was not drafted as a legal instrument and lacks the
precision necessary to resolve complex legal questions. Its normative
value lies as a declaration of basic moral principles and broad
political commitments and as a basis to review the general human
rights performance of member states, not as a binding set of
obligations.
.....The United States recognizes
the good intentions of those who would transform the American
Declaration from a statement of principles into a binding legal
instrument. But good intentions do not make law. It would seriously
undermine the process of international lawmaking—by which
sovereign states voluntarily undertake specified legal obligations—to
impose legal obligations on states through a process of "reinterpretation"
or "inference" from a non-binding statement of principles.
13. For its part, the Government of Peru said that although the Declaration could have been considered an instrument without legal effect before the American Convention on Human Rights entered into force, the Convention has recognized its special nature by virtue of Article 29, which prohibits any interpretation "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" and has thus given the Declaration a hierarchy [as a source of law] similar to that of the Convention with regard to the States Parties, thereby contributing to the promotion of human rights in our Continent.
14. The Government of Uruguay affirmed that
.....i) The Inter-American Court of Human Rights is competent to render advisory opinions on any aspect of the American Declaration of the Rights and Duties of Man in relation to the revised Charter of the Organization of American States and the American Convention on Human Rights, within the scope of Article 64 of the latter.
.....ii) The juridical nature of the Declaration is that of binding, multilateral instrument that enunciates, defines and specifies fundamental principles recognized by the American States and which crystallizes norms of customary law generally accepted by those States.
15. The Government of Venezuela asserted that
as a general principle recognized by international law, a declaration is not a treaty in the true sense because it does not create juridical norms, and it is limited to a statement of desires or exhortations. A declaration creates political or moral obligations for the subjects of international law, and its enforceability is thus limited in contrast to a treaty, whose legal obligations are enforceable before a jurisdictional body....
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..III
19. The
Court will first examine the admissibility of the instant advisory
opinion request [that is, whether the Court has the jurisdiction
to hear and determine Colombia's application for an advisory
opinion].
20. Article 64(1) provides:
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 ... may in like manner consult the Court.
...................................................................... ....
28. The Court holds that it has the requisite competence to render the present request advisory opinion and therefore rules it to be admissible. [This was the procedural hurdle.]
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29. The Court will now address
the merits [of the substantive legal] question before it [having
ruled that it has the jurisdiction to determine such matters].
30.
Article 64(1) of the Convention authorizes the Court to
render advisory opinions "regarding the interpretation of
this Convention or of other treaties concerning the protection
of human rights in the American states."
........................................................................................
33. In attempting to define
the word "treaty" as the term is employed in Article
64(1), it is sufficient for now to say that a "treaty"
is, at least, an international instrument of the type that is
governed by the two Vienna Conventions [see § 8.1]. ...
What is clear ... is that the Declaration is not a treaty as
defined by the Vienna Conventions because it was not approved
as such, and that, consequently, it is also not a treaty within
the meaning of Article 64(1) [of the 1978 American Human Rights
Convention].
34. ... In order to
obtain a consensus, the Declaration was conceived as the
initial system of protection considered by the American States
as being suited to the present social and juridical conditions,
not without a recognition on their part that they should increasingly
strengthen that system in the international field as [political
and economic] conditions become more favorable. ([1948] American
Declaration, Considerandum 4).
This same principle was confirmed on September 25, 1949, by the
Inter-American Committee of Jurisconsults, when it said:
It is evident that the [American] Declaration of Bogota does not create a contractual juridical obligation, but it is also clear that it demonstrates a well defined orientation toward the international protection of the fundamental rights of the human person.
35. The mere fact that the Declaration is not a treaty does not necessarily compel the conclusion that the Court lacks the power to render an advisory opinion containing an interpretation of the American Declaration.
36. In fact, the [1978] American Convention refers to the [1948 American] Declaration in paragraph three of its [Convention] Preamble which reads as follows:
Considering that these principles have been set forth in the Charter of the Organization of the American States, in the American Declaration of the Rights and Duties of Man, and in the [UN's 1948] Universal Declaration of Human Rights, and that they have been reaffirmed and defined in other international instruments, worldwide as well as regional in scope.
And in [treaty] Article 29(d) which indicates:
No provision of this convention shall be interpreted as:
...
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.
From the foregoing, it follows that, in interpreting the Convention in the exercise of its advisory jurisdiction, the Court may have to [thus] interpret the Declaration.
37. The American Declaration has its basis in the idea that "the international protection of the rights of man should be the principal guide of an evolving American law" (Third Considerandum). This American law has evolved from 1948 to the present; international protective measures, subsidiary and complementary to national ones, have been shaped by new instruments. As the International Court of Justice said: "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation." That is why the [Inter-American] Court finds it necessary to point out that to determine the legal status of the American Declaration it is appropriate to look to the inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948.
38. The evolution of the here relevant "inter-American law" mirrors on the regional level the developments in contemporary international law and especially in human rights law, which distinguished that law from classical international law to a significant extent. That is the case, for example, with the duty to respect certain essential human rights, which is today [a duty that also empowers international courts to use pretreaty declarations of intent to interpret current human rights obligations]. ...
39. The Charter of the
Organization refers to the fundamental rights of man in its Preamble
and in [various] Articles, but it does not list or define them.
The member states of the Organization have, through its diverse
organs, given specifically [specificity] to the human rights
mentioned in the Charter and to which the Declaration refers.
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41. These norms authorize the
Inter-American Commission to protect human rights. These rights
are none other than those enunciated and defined in the American
Declaration. That conclusion results form Article 1 of the Commission's
Statute, which was approved by Resolution No. 447, adopted by
the General Assembly of the OAS at its Ninth Regular Period of
Sessions, held in La Paz, Bolivia, in October, 1979. That Article
reads as follows:
....1. The Inter-American Commission on Human Rights is an organ of the Organization of American States, created to promote the observance and defense of human rights and to serve as consultive organ of the Organization in this matter.
.....2. For the purpose of the present Statute, human rights are understood to be: a. The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto; b. The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.
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42. The General Assembly
of the Organization has also repeatedly recognized that
the American Declaration is a source of international obligations
for the member states of the OAS. For example, in resolution
314 (VII-0/77) of June 22, 1977, it charged the Inter-American
Commission on Human Rights with the preparation of a study to
"set forth their obligation to carry out the commitments
assumed in the American Declaration of the Rights and Duties
of Man." In Resolution 371 (VIII-0/78) of July 1, 1978,
the General Assembly reaffirmed "its commitment to promote
the observance of the American Declaration of the Rights and
Duties of man," and in Resolution 370 (VIII-0/78) of July
1, 1978, it referred to the "international commitments"
of a member state of the Organization to respect the rights of
man "recognized in the American Declaration of the Rights
and Duties of Man." The Preamble of the American Convention
to Prevent and Punish Torture, adopted and signed at the Fifteenth
Regular Session of the General Assembly in Cartagena de Indias
(December, 1985), reads as follows:
Reaffirming that all acts of torture or any other cruel, inhuman, or degrading treatment or punishment constitute an offense against human dignity and a denial of the principles set forth in the Charter of the Organization of American States and in the Charter of the United Nations and are violations of the fundamental human rights and freedoms proclaimed in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights.
43. Hence it may be said that by means of an authoritative interpretation, the member states of the Organization have signaled their agreement that the Declaration contains and defines the fundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot be interpreted and applied as far as human rights are concerned without relating its norms, consistent with the practice of the organs of the OAS, to the corresponding provisions of the Declaration.
44. In view of the fact that the Charter of the Organization and the American Convention are treaties with respect to which the Court has advisory jurisdiction by virtue of Article 64(1), it follows that the Court is authorized ... to interpret the American Declaration and to render an advisory opinion relating to it whenever it is necessary to do so in interpreting those instruments.
.....The Court decided that it was competent to render this advisory opinion. Having done so, what did the Court actually decide?
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