1. The communication of November 11, 1996, received at the Secretariat of the Inter-American Court of Human Rights (hereinafter "the Court" or "the Tribunal") on November 13, 1996, in which the Republic of Chile submitted, in accordance with Article 64(1) of the American Convention on Human Rights (hereinafter "the Convention" or "the American Convention", a request for an advisory opinion in the following terms:
a) May the Inter-American Commission, once it has adopted the two reports referred to in Articles 50 and 51 of the Convention in respect of a State and, concerning the latter of those reports, has notified the State that it is a final report, alter the substance of those reports and issue a third report?, and
b) Should the Inter-American Commission on Human Rights, under the Convention, not be authorized to alter its final report, which of the reports should be deemed to be binding on the State? ...
The State added that its request was based on the following considerations:
that in the opinion of the Government of Chile, Articles 50 and 51 of the Convention make no provision for revision or amendment of a final report that has been previously adopted, nor could this be inferred from the text. On the contrary, such an action constitutes a serious infringement of the legal certainty required by the system.
In view of the differing opinions within the Commission itself on the decision adopted, which concerns an exceedingly important practical procedural aspect of the Convention, and considering the need for the parties involved in a proceeding before the IHCR to know what they must abide by, it is essential for the State of Chile to know the opinion of the Inter-American Court of Human Right on this particular.
The State appointed Ambassador Edmundo Vargas-Carreño, Permanent Representative of Chile to the Organization of American States (hereinafter "the OAS"), and attorney Carmen Hertz-Cádiz, Human Rights Adviser in the Ministry of Foreign Affairs of Chile, to serve as its agents.
2. The official communications of the Secretariat (hereinafter "the Secretariat"), issued between November 14 and 22, 1996, in which, in accordance with Article 54(1) of the Rules of Procedure of the Court (hereinafter "the Rules of Procedure"), it requested the Member States of the OAS, the Inter-American Commission on Human Rights (hereinafter "the Commission") the Permanent Council of the OAS and, through the OAS Secretary General, all the organs listed in Chapter VIII of the OAS Charter to submit written observations and the relevant documents on the subject of the advisory opinion. Therein, the Secretariat informed them that the written observations and the relevant documents must be submitted by January 31, 1997.
3. The communication of January 10, 1997, in which the Commission informed the Court that it had appointed Mr. Carlos Ayala-Corao and Mr. Robert Goldman to serve as its delegates in this advisory proceeding. The Commission also requested the President of the Court to grant an extension of sixty days for presentation of the written observations on the request for an advisory opinion.
4. The Order of the President of the Court of January 17, 1997, in which he decided to:
[e]xtend by forty-five days the term for presentation of written observations or other documents concerning the request for advisory opinion OC-15 and establish March 17, 1997, as the new deadline.
5. The notes dispatched by the Secretariat between January 17 and 22, 1997, through which it notified the member States of the OAS, the Commission, the Permanent Council of the OAS and, through the OAS Secretary General, all the organs referred to in Chapter VIII of the OAS Charter of the Order of the President of the Court of January 17, 1997.
6. The communication submitted by the State of Guatemala at the Secretariat of the Court on January 31, 1997, in which it informed the Court of its view concerning the request for an advisory opinion which gave rise to this matter.
7. The communication of March 12, 1997, from the Inter-American Commission, submitting to the Court a copy of a letter from the agent to the President of the Court, declaring that the State had decided to withdraw the request for an advisory opinion.
8. The communication of March 13, 1997, from the Inter-American Commission, in which its delegates requested the President of the Court to "halt the [advisory] proceeding and suspend the deadlines" until such time as the withdrawal of the request for an advisory opinion had been formalised. On the instructions of the President of the Court, the Secretariat informed the delegates that no decision could be taken on the matter inasmuch as the requesting State had made no petition to the Tribunal.
9. The observations submitted in writing to the Tribunal by the State of Costa Rica on March 18, 1997.
10. The Order of the President of the Court of March 18, 1997, in which he decided to convoke all those States, agencies, institutions and individuals that submitted their views on the request for Advisory Opinion OC-15 to a public hearing to be held at the seat of the Court on April 12, 1997, at 10:00 a.m.
11. The brief of March 25, 1997, from the State of Chile in which it "confirm[ed]" to the President of the Court its withdrawal of the request for an advisory opinion that gave rise to this proceeding. The State of Chile also indicated in the brief that the reasons for that decision were given in a letter from the Minister of Foreign Affairs of that State to the President of the Inter-American Commission and attached a copy.
12. The Order of the President of the Court of April 3, 1997, in which, in view of the brief of March 25, from the State of Chile, he decided to "cancel the public hearing convened for April 12, 1997, in the proceeding concerning the request for Advisory Opinion OC-15."
1. That Article 64 of the American Convention authorizes the member States of the OAS to consult the Court "regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states."
2. That, in the above situation, the consulting State is not acting in its sole interest inasmuch as the opinion issued may affect all the member States of the OAS.
3. That Article 62(1) of the Rules of Procedure of the Court in force provides that the request for an advisory opinion shall be communicated to all the Member States of the OAS, which may submit their observations in writing or, as the case may be, participate in the oral hearing. In the instant case the request was communicated to the Member States of the OAS, two of which submitted their observations to the Court in writing.
4. That the aforementioned provision of the Rules of Procedure concerning notifications underscores the distinction between advisory proceedings and contentious proceedings, in that the latter require that only the respondent State and not the other States be notified. This distinction confirms that the State requesting an advisory opinion is not the only interested party and that even if it withdraws the request, that withdrawal is not binding on the Court, so that, given the particular scope of its advisory powers, this Tribunal may continue to process the matter.
5. That in cases of contentious jurisdiction in which the competence of the Court is more restricted, withdrawal by the respondent does not oblige the Court to close the matter; rather, "bearing in mind its responsibility to protect human rights, [it may] decide to continue the consideration of the case." (Articles 27(1), 52(1), and 54 of the Rules of Procedure). These precepts are applicable a fortiori and by analogy to advisory proceedings, in which there are no "parties" stricto sensu (Article 63 of the Rules of Procedure).
6. That the Court understands that regulations which have the character of ordre public should be interpreted according to the fundamental tenet of the Convention, which is the protection of human rights.
7. That the above considerations do not prejudge the question of the admissibility of the request nor, as appropriate, of the merits of the advisory opinion.
THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
by virtue of the powers conferred on it by Article 64 of the American Convention on Human Rights and Article 62 of its Rules of Procedure, pursuant to Article 29 of those Rules,
by six votes to one,
1. To continue, in exercise of its advisory function, to process this matter.
2. To entrust the President of the Court with the task of setting a new deadline for the Member States of the OAS and the organs indicated in Article 64 of the Convention to submit their comments and relevant documents.
3. To entrust the President of the Court with the task of convening a hearing on admissibility and merits in due course.
Judge Pacheco-Gómez informed the Court of his dissenting opinion, which appears as an annex to this order.
Done in Spanish and English, the Spanish text being authentic, at the seat of the Court in San Jose, Costa Rica, on this fourteenth day of April, 1997.