Puntos de vista recibidos de varias organizaciones como Amici Curiae - International League for Human Rights & Lawyers Committee for International Human Rights (inglés únicamente)


 

Marvin E. Frankel, Michael Posner, Lawyers Committee for International Human Rights

Jerome J. Shestack, Roger Clark, Nina Shea, International League for Human Rights

 

TABLE OF CONTENTS

QUESTION PRESENTED

PRELIMINARY STATEMENT

INTEREST OF AMICI CURIAE

AMICUS CURIAE BRIEFS SHOULD BE ACCEPTED BY THE COURT IN THIS CASE

SUMMARY OF ARGUMENT

ARGUMENT.

 

I. The Vienna Convention on the Law of Treaties should be applied

II. It is Evident in Satisfaction of the Requirement of Article 31 of the Vienna Convention that the "object and purposes" of the American Convention are to further the Goals of Global Human Rights Instruments

LEGISLATIVE HISTORY.

 

III. An Examination of the Preparatory Work on the American Convention Clearly Shows that the Drafters Intended that the Court Should Have Advisory Jurisdiction over All Treaties to Which American States are Parties

IV. A Broad Interpretation of Article 64 to Include Global Treaties is Consistent with United Nations Doctrine

V. Conclusions

 

QUESTION PRESENTED:

Whether under Article 64 of the American Convention on Human Rights the advisory jurisdiction of the Inter-American Court of Human Rights extends to all treaties to which one or more American States are parties?

 

PRELIMINARY STATEMENT:

This case concerns the advisory jurisdiction of the Inter-American Court of Human Rights. In June 1982, the government of Peru requested the Court to interpret Article 64 of the American Convention on Human Rights. It 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).

At issue is whether the phrase "other treaties concerning the protection of human rights in the American states," should include all treaties to which one or more American States are parties.

The International League for Human Rights and the Lawyers Committee for International Human Rights contend that Article 64 empowers the Court to interpret all treaties to which American States are parties, including those of the United Nations. This brief is submitted in support of our position.

 

INTEREST OF AMICI CURIAE.

The Lawyers Committee for International Human Rights (the "Lawyers Committee") is a non-governmental human rights organization. Founded in 1975, the Lawyers Committee seeks to promote respect for international human rights law and legal principles. The lawyers Committee serves as a legal resource center for various human rights organizations in the United States and elsewhere. In the last several years, the Lawyers Committee has prepared various reports on international human rights violations in specific countries, including reports that have been submitted to the OAS Inter-American Commission on Human Rights.

The Lawyers Committee has also submitted several amicus curiae briefs in various federal courts in the United States, urging the utilization of international human rights provisions in domestic U. S. cases.

The Chairman of the Lawyers Committee is Marvin. E. Frankel.

The International League for Human Rights (the "League"), is an international, non-governmental human rights organization. Founded in 1942, the League has consultative status with the Economic and Social Council of the United Nations and with UNESCO, ILO and the Council of Europe. In the last several years, League representatives attended the General Assembly meetings of the OAS. Currently, the League has 40 affiliates in 30 countries, including six in Member States of the OAS.

Of the reports on human rights violations prepared by the Lague in recent years, several have been submitted to the Inter-American Commission on Human Rights for consideration. In January 1981, the League submitted comments to the Inter-American Court of Human Rights on the Court's Rules of Procedure.

The President of the International League is Jerome J. Shestack.

Both the Lawyers Committee and the League are committed to the development of the Inter-American system, including an effective and independent Inter-American Court of Human Rights. This brief is submitted to assist the Court in formulating its operating procedures.

 

AMICUS CURIAE BRIEFS SHOULD BE ACCEPTED BY THE COURT IN THIS CASE:

The amicus curiae brief is primarily a common law institution although it was said to exist in Roman law and has found limited use in at least one civil law country, France. (Angell, The Amicus Curiae: American Development of English Institutions, 16 Int'l and Comp. L.Q. 1017 (1967); Krislov, The Amicus Curiae Brief: From Friendship to Advocary, 72 Yale Law Journal 694 (1963).) The value of amicus briefs has been succinctly stated by Professor W. Michael Reisman of Yale Law School in correspondence with the Registrar of the International Court of Justice:

 

In common law countries, the amicus curiae brief has been an institution which has provided useful information to courts, permitted private parties who were not litigating to inform the court of their views and the probable effects the outcome might have on them and, overall, has served as a means for integrating and buttressing the authority and conflict-resolving capacities of domestic tribunals.

(I.C.J., Pleadings, legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) Volume II at 636-37.)

In a number of important recent United States cases involving international human rights law, significant contributions have been made by amici. Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980); Doe v. Plyler, 628 F. 2d 448 (5th Cir. 1980), ____ U.S. ____ (1982); Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, (S.D. Fla., 1980), aff'd sub nom.; Haitian Refugee Center v. Smith, F.2nd ____ (5th Cir. Unit B, 1982); Rodriguez Fernandez v. Wilkinson, 654 F. 2d 1382 (10 th Cir. 1981). This is not a new development; perhaps the first United States amicus brief raising questions of international human rights law (particularly the United Nations Charter), was submitted in the case of Shelley v. Kramer, 334 U. S. 1 (1948), the landmark Supreme Court case on racially restrictive covenants. An amicus brief was presented in that case by the American Association for the United Nations. Its authors were a notable group, including Alger Hiss, Phillip C. Jessup, Joseph M. Proskauer, and Myles S. McDougal.

There is nothing in the Statute or the Rules of Procedure of the Inter-American Court which explicitly permits or prevents the filing of such briefs. Yet the powers of the Court under Article 60 of the American Convention to "adopt its own Rules of Procedure" and under Article 1, paragraph 2, of the Rules to "adopt such other Rules as are necessary to carry out its functions" provide ample authority for the Court to permit the filing of such documents.

In urging the acceptance of amicus curiae briefs in this case, we do not suggest that the rights to file such briefs should be automatic. The Court can and should exercise discretion as to which material it will receive. As it begins to hear more cases, the Court will be able to develop guidelines in the light of its experience. We note that the United States Supreme Court permitted the filing of amicus briefs in the exercise of its instrinsic powers as early as 1904, even though it did not adopt a written rule on the subject until 1937. (Krislov, supra at 694 and 707.) Some indication of the importance of such briefs to minority groups is shown by the fact that the 1904 filing was by an organization known as the Chinese Charitable and Benevolent Association of New York and many of the early briefs filed in the United States Supreme Court were on behalf of the National Association for the Advancement of Colored People.

From the outset, the Permanent Court of International Justice and the International Court of Justice had specific powers to permit international non-governmental organizations to furnish information concerning the subject matter of advisory opinions. The current provision is contained in Article 66, paragraph 2, of the Statute of the International Court of Justice. It was formerly contained in Article 73 of the Rules of the Permanent Court of International Justice. Article 66, paragraph 2, of the Statute of the International Court of Justice provides:

 

The Registrer shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question.

The International Court of Justice has interpreted this language to permit it to receive statements from an international non-governmental organization, specifically the International League for Human Rights (I.C.J., Pleadings, International Status of South West Africa (1950) at 327; also see Clark, Roger, The International League for Human Rights and South West Africa 1947-1957: The Human Rights NGO as Catalyst in the International Legal Process, 3(4) Human Rights Quarterly, 101 at 120-22 (1981).)

Unfortunately, this procedure is all too seldom invoked in the practice of the International Court of Justice. It was often used by the Permanent Court of International Justice particularly in proceedings involving the interpretation of International Labor Organization documents. In fact, when it was called upon to render its very first advisory opinion in 1922, the Permanent Court decided to permit participation by any international organization (clearly including non-governmental organizations) which expressed the No. 1, Series C, No. 1 at 5, 449 (1922); Series B, No. 1 at 11 (1922); K. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice 189-190 (1971).) This precedent was followed in several subsequent cases. (Clark, supra at 121 note 82.)

We would submit, however, that the scope of Article 66, paragraph 2, of the Statute of the International Court of Justice is too narrow in two respects. First, Article 66 refers to material from an "international organization." This limitation seems to explain the decisions of the Court in the United Nations Administrative Tribunal Case, ((1954) I.C.J. 47), where the Court declined to hear from counsel who had represented staff members of the United Nations in proceedings before the United Nations Administrative Tribunal. (Also see remarks in Advisory Opinion, "Judgments of the Administrative Tribunal of the ILO upon complaints made against UNESCO," (1956), I.C.J. 77 at 80, 109 and 114). We would suggest that the Inter-American Court not limit itself to the receipt of material from international organizations. In the human rights context, there are many national human rights organizations not necessarily affiliated with appropriate international organizations that have a significant stake in being permitted to make observations concerning particular issues before the Court. While it is not limited to such cases, this may be particularly so regarding opinions rendered to a member state under Article 64, paragraph 2, of the American Convention on the compatibility of domestic laws with international human rights instruments. It also should be noted that, on occasion, the Permanent Court of International Justice has received material from national groups, but apparently has not directed its attention as to whether this was is accordance with the Court's Rules. (See Clark, supra, 121 note 82, But cf., Series C, No. 1 at 449 (1922) where permission for participation by a national organization was refused on the basis that the Court's decision to receive material extended only to international organizations.)

There is a second area in which the Inter-American Court should expand on the practice of the International Court of Justice. The experience of the International Court of Justice is limited to the receipt of amicus material concerning advisory proceedings. Article 34 of its Statute, as well as the prior provisions concerning the Permanent Court of International Justice, state that in contentious proceedings the views of "public international organizations" may be received. The difference between the reference to "international organizations" in Article 66 and "public" international organizations in Article 34 is a significant one in that it precludes non-governmental organizations from participating in Article 34 proceedings. We submit that amicus briefs are equally helpful in cases brought under the general jurisdiction of the Inter-American Court (contained in Article 62 of the American Convention) as they are under its power to render advisory opinions pursuant to Article 64.

 

SUMMARY OF ARGUMENT:

The ultimate question before this Court is how Article 64 of the American Convention on Human Rights should be interpreted. As this is a case of first impression, there are no precedential cases to guide the Court in making its decision. Instead, it should rely principally on the Vienna Convention on the Law of Treaties.

Article 31 of the Vienna Convention requires that a treaty provision should be interpreted in the context of the whole treaty and "in light of its object and purpose." Here, it is clear that the object and purpose of the American Convention on Human Rights is to promote internationally recognized human rights principles, through the OAS, a regional organization. The Preamble to the Convention makes explicit references to the U.N. Universal Declaration of Human Rights; its provisions closely track the U.N. Covenants of Civil and Political Rights, and Economic, Social and Cultural Rights. Accordingly, Article 64 should be interpreted as permitting the Court to exercise advisory jurisdiction in interpreting all international human rights treaties that bind OAS member states. Alternatively, if the Court is not persuaded that the test of Article 31 has been met, Article 32 provides that ambiguous language should be evaluated using supplementary means of interpretation including the preparatory work of the treaty. Under this test there can be little doubt that the drafters of the American Convention intended Article 64 to give the Court broad jurisdiction to issue advisory opinions on treaties outside the OAS, and particularly treaties of the United Nations.

 

ARGUMENTS

 

I. THE VIENNA CONVENTION ON THE LAW OF TREATIES SHOULD BE APPLIED.

In examining the meaning of Article 64, the Court has no prior cases to guide it. As a result it should review the question utilizing the Vienna Convention on the Law of Treaties as its guide. The Vienna Convention is widely recognized as customary international law in this area. (See Legal Consequences for States of the Continued Presence of South Africa in Namibia (S.W. Africa) Notwithstanding Security Council Res. 276 (1970) 1971 I.C.J. 16 at 47.)

The American Convention explicitly recognizes the Vienna Convention as the standard by which it will interpret all reservations by States parties (Article 75). In interpreting Article 64 in the present case, the Vienna Convention represents the most appropriate authority on which the Court should rely.

 

II. IT IS EVIDENT IN SATISFACTION OF THE REQUIREMENT OF ARTICLE 31 OF THE VIENNA CONVENTION THAT THE "OBJECT AND PURPOSE" OF THE AMERICAN CONVENTION ARE TO FURTHER THE GOALS OF GLOBAL HUMAN RIGHTS INSTRUMENTS.

Article 31 of the Vienna Convention requires that the object and purpose of a treaty must be evaluted in interpreting a treaty provision.

Article 31 of the Vienna Convention states that:

 

a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

In analyzing the American Convention as a whole, it is clear, as explicitly stated in the preamble, that its "object and purpose" is to cooperate with the United Nations in promoting fundamental principles of human rights.

According to its first preambular paragraph, the purpose of the Convention is 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." In elucidating this concept, the preamble makes two explicit references to the Universal Declaration of Human Rights and another to "other instruments, worldwide as well as regional in scope."

Moreover, the substantive provisions of the treaty closely correspond to those of the United Nations International Covenant on Human Rights (See Legislative History, supra). Chapter II of the Convention (Articles 3 through 25) setting forth civil and political rights substantially parallels the guarantees of the International Covenant on Civil and Political Rights. Article 26 incorporates the economic, social and cultural standards that are established in the OAS Charter as amended by the Protocol of Buenos Aires. These accord with the standards contained in the International Covenant on Economic, Social and Cultural Rights. In addition, the implementation clause in Article 26 of the Convention, calls for the "progressive" realization of these rights, adopting the United Nations' approach to this issue as well.

Thus, the object purpose of the American Convention as explicitly stated in its preamble and as evident from the substantive content of its text, are to further the goals set forth in the basic human rights instruments of the United Nations.

LEGISLATIVE HISTORY

 

III. AN EXAMINATION OF THE PREPARATORY WORK ON THE AMERICAN CONVENTION CLEARLY SHOWS THAT THE DRAFTERS INTENDED THAT THE COURT SHOULD HAVE ADVISORY JURISDICTION OVER ALL TREATIES TO WHICH AMERICAN STATES ARE PARTIES.

Alternatively, on the basis that the text is either ambiguos or its meaning needs confirmation, this Court may decide to interpret Article 64 by examining the preparatory work of the Convention. Article 32 of the Vienna Convention provides for such analysis as a supplementary means of interpreting treaty language.

In this case, the specific documentation of the travaux preparatoires of the American Convention offers little guidance in interpreting the meaning of the phrase, "treaties concerning the protection of human rights in the American states". (See Buergenthal, Thomas, The Inter-American Court of Human Rights, 76 Am. J. Int'l L. 231, 242, April 1982). However, a review of the total drafting context of the Convention does provide some important insights regarding the intent of the drafters. This context indicates, for example, that the drafters were not only cognizant of the United Nations International Human Rights Covenants, but had the explicit goal of furthering these international norms by drawing up a complementary set of principles to be given effect through the regional OAS structure.

The American Convention on Human Rights has its origins in the Fifth Meeting of Consultation of Ministers of Foreign Affairs of the American Republics, held in 1959 in Santiago, Chile. This conference produced a resolution directing the Inter-American Council of Jurists (IACJ), an organ of the OAS Council, to prepare a draft convention on human rights. (Res. VIII, Fifth Meeting of Consultation). At a second meeting held in Santiago, shortly after the Fifth Consultation, the IACJ prepared and approved a draft convention on human rights.

The draft Convention incorporated substantive provisions relating to civil, political, economic, social and cultural rights and provisions for enforcement procedurs in a single instrument. It was based in large part on the prior efforts of the United Nations and the Council of Europe.

(See Res. XXIV, No. 1965, Inter-American Yearbook on Human Rights (1968) at 70.) The substantive provisions closely parallel those of the International Covenants on Human Rights: the enumeration of individual guarantees (Articles 2-19 substantially accorded with those found in the International Covenant on Civil and Political Rights; the provisions on economic, social and cultural rights adopted by the IACJ (Articles 20-33) generally corresponded to those embodied in the International Covenant on Economic, Social and Cultural Rights; and the "measures of implementation," (Articles 34-81), providing for an Inter-American Commission for the Protection of Human Rights and an Inter-American Court of Human Rights, are clearly modeled on the institutional machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (See Cabranes, Jose A., The Protection of Human Rights by the OAS, 62 Am. J. Int'l L. 889, Oct. 1968).

In 1965, the Second Special Inter-American Conference agreed to send the IACJ draft, together with draft conventions presented by the governments of Chile and Uruguay, to the Council of the OAS in order to complete the draft. (Activities of IACHR (1965-1969), OEA/Ser.L/V/II. 23, 2/23/71.) In May 1966, the OAS Council approved a resolution to transmit the draft to the Inter-American Commission on Human Rights (IACHR) for its opinions and recommendations. At its meeting on May 5, 1967, the Committee on Juridical-Political Affairs of the OAS Council noted that on December 16, 1966 the United Nations General Assembly approved an International Covenant on Economic, Social and Cultural Rights, an International Covenant on Civil and Political Rights, and its Optional Protocol, which had been signed by a number of American states. The Council, at the Committee's request, consulted the Member States on the following matters:

 

1. Whether the governments of the American states, in approving, at the Twenty-First Session of the General Assembly of the United Nations, Resolutions A, B, and C, concerning the International Covenants on Human Rights, wished to have a single universal system of regulation of human rights; or whether on the contrary they contemplated the possibility of the coexistence and coordination of the worldwide and regional convention on the same rights.

2. Whether, in the latter case, those governments consider that the Inter-American Convention on Human Rights provided for in article 112 of the Protocol of Amendment to the Charter of the Organization of American States should be limited to establishing an Inter-American institutional and procedural system for the protection of those rights that would include the Inter-American Commission on Human Rights and, eventually, and Inter-American Court of Human Rights.

(Inter-American Yearbook on Human Rights (1966) at 81.)

After such consultation took place, the IACHR, at its 17th Session, noted that the majority of the States which had answered the inquiry had been in favor of continuing the work on an Inter-American Convention on Human Rights. (For the text of the government replies, see Id. at 81-87.) The IACHR then requested the Secretariat to undertake a comparative study of the IACJ draft and the United Nations International Covenants on Human Rights. On the basis of the Secretariat's Comparative Study, the Council adopted a resolution requesting the IACHR to "draw up a revised and complete text of a preliminary draft convention" and that "that text be in harmony with the International covenants of the United Nations." (OEA/Ser.G/IV-C-i-837 Rev.3, June 12, 1968.)

To carry out this mandate, the Commission convened its 19th Special Session in Washington, D.C., from July 1-11, 1968. At this session, on the basis of the Comparative Study, as well as government recommendations and its own opinions, the IACHR revised the IACJ's draft to include a separate article providing for the consultative jurisdiction of the Court. The Article, No. 53, stated as follows:

 

The General Assembly, the Permanent Council, and the Commission may consult the Court concerning the interpretation of this Convention or of other treaties concerning the protection of human rights in the American States; and the States Parties may consult the Court concerning the compatibility of any of their domestic law with the aforesaid international instruments.

This was the first provision ever included in any of the OAS drafts which empowered the Court with advisory jurisdiction. The phrase, "other treaties concerning the protection of human rights in the American States" originated in the draft and has been incorporated without change into the final Convention.

In light of these actions, there can be little doubt that the provision establishing the consultative jurisdiction of the Court, containing the phrase at issue, is a reference to global human rights treaties, particularly the United Nations International Covenants on Human Rights: there was a general concern in the OAS regarding the relationship between the proposed American Convention and the UN treaties on human rights; the Commission drafters, themselves, had directd that a study comparing the IACJ draft and the United Nation's Covenants be undertaken; the request for continuing the work on the Inter-American draft even though a number of American States had already become Parties to the United Nations Covenants was ratified by the majority of American States which expressed an opinion on this issue; the Commission was sent a directive from the OAS Council to draft the convention so that it would be "in harmony with the International Covenants of the United Nations"; the Commission in fact completed the draft one year later; the Commission relied, at least partially, on the comparative study in adding the provision on the consultative jurisdiction of the Court containing the phrase in question; and, furthermore, no other American treaty was being contemplated and discussed with any comparable concern within the OAS drafting bodies at the time. Finally, in its annotations of the draft, the IACHR, commenting on the newly adopted Article 53, stated;

 

In accordance with the decision of the Commission to establish in the Preliminary Draft the consultative jurisdiction of the Inter-American Court of Human Rights for interpretation of the Convention or of any other treaty concerning human rights in the American States, the provision that appears as Article 53 of that draft was approved.
(Emphasis added).
(OEA/Ser.L/V/II/.19, 2/11/69).

The use of the term "any" in the Commission's comments indicates an intent to apply a broad interpretation to the phrase it modifies, "other treaty concerning human rights in the American States."

The Council of the OAS adopted the Preliminary Draft prepared by the Commission (Resolution of October 2, 1968). It covened the historic Inter-American Specialized Conference on Human Rights in San Jose, Costa Rica, from November 7-22, 1969, at which the final draft of the document was prepared and the American Convention was at last adopted.

The final draft of the Convention was also the product of international efforts. Advisors to the San Jose Conference included representatives of the United Nations and its specialized agencies such as the United Nations Office of the High Commissioner for Refugees, UNESCO and ILO. Also present as observer-advisers were two justices of the European Court of Human Rights, and the director of the Human Rights Division of the Council of Europe. Not only did the conferees have the benefit of the experience and precedents of the European and United Nations treaties on human rights but some of the participants had themselves participated in and written studies on these prior drafting efforts.

At the San Jose Conference, Article 64 of the Convention, which corresponds to Article 53 of the draft, was broadened to extend the right to consult the court for interpretation to all the organs of the OAS as well as to all OAS Member States. This liberalization of standing for requesting advisory opinions was in keeping with the trend throughout the drafting process of broadening the consultative jurisdiction of the Court. This too supports the contention that the drafters intended a broad interpretation of this provision.

 

IV. A BROAD INTERPRETATION OF ARTICLE 64 TO INCLUDE GLOBAL TREATIES IS CONSISTENT WITH UNITED NATIONS DOCTRINE.

Article 52 of the United Nations Charter stipulates:

 

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 Purposes and Principles of the United Nations.

The Charter recognizes interdependence of the protection of human rights and the "maintenance of international peace and security." Although the Chartes does not specifically allocate responsibility for enforcing human rights standards between regional organizations and the United Nations, this provision clearly does contemplate that such a division of responsibility may occur.

A significant step in that direction was taken in the Optional Protocol to the International Covenant on Civil and Political Rights. Article 5 of the Protocol requires that the Human Rights Committee, the body empowered to monitor implementation of the International Covenant on Civil and Political Rights, abstain from considering a matter that is "being examined under another procedure for international investigation or settlement." As one international legal scholar observed, "this provision...would appear to grant an individual in a state that had accepted the enforcement procedures of both a regional convention and the United Nations Covenants an initial choice of regional or global forum." (Cabranes, Jose A., The Protection of Human Rights by the OAS, 62 Am. J. Int'l L., 889, 905, October 1968).

In more general terms, the role of regional organizations in ensuring the realization of human rights and fundamental freedoms has been a concern of various United Nations bodies since the inception of the Organization.

Although a number of early United Nations' studies concerned the efforts of national organizations, at the time of the adoption of the International Covenants on Human Rights in 1966, the United Nations undertook its first serious examination on the role of regional organizations in safeguarding human rights. At its August 1966 session, the Economic and Social Council of the United Nations adopted a resolution to cooperatte with regional inter-governmental bodies concerned with human rights. The resolutions requested the Secretary-General to arrange for an exchange of information on matters relating to human rights between the United Nations Human Rights Commission and the Inter-American Commission on Human Rights, the Council of Europe, the Organization of African Unity and other regional bodies particularly concerned with human rights (ECOSOC Res. 115 (XLI) adopted at the 1445th plenary meeting of the Council on 5 August 1966). That year, the General Assembly also called for an examination of the establishment of regional commissions on human rights (General Assembly Res. 2200 (XXI) of 16 December 1966).

In 1967 the United Nations Commission on Human Rights expressed its belief that "it is timely to give encouragement to the formation of regional commissions on human rights within or outside the United Nations system." (Res. 6. (XXIII), Commission on Human Rights, U.N. ECOSOC, 42nd Sess., Official Records, Supp. No.6 at 125, 126, E/4322, E/CN.4/940, 1967). It did so in an ad hoc Study Group "to study in all its aspects the proposal to establish regional commissions on human rights within the United Nations family...." /U.N. Doc. E/CN.4/966, Jan 26, 1968). In 1968, after considering the report of the ad hoc Study Group, the Commission requested the Secretary General to consider the possibility of arranging suitable regional seminars in those areas where no regional commission on human rights existed to discuss the usefulness of the establishment of such commissions. Such a seminar, focusing on the establishment of an African regional human rights commission, took place in September 1969 in Cairo.

In 1977, the United Nations General Assembly reviewed the question of regional arrangements for the promotion and protection of human rights. It adopted a resolution appealing to States "in areas where regional arrangements in the field of human rights do not yet exist to consider agreements with a view to the establishment within their respective regions of suitable regional machinery for the promotion and protection of human rights."
(Res. 32/127 of 16 Dec. 1977).

In September 1979, a United Nations Seminar on the Establishment of Regional Commissions on Human Rights with special reference to Africa was held at Monrovia. At the seminar, proposals for setting up an African Commission on Human Rights were adopted, resulting in the drafting of an OAU "Charter of Human and People's Rights" in 1981.

In resolutions adopted in 1979, 1980 and 1981, the United Nations General Assembly reiterated its policy of encouraging the establishment of regional human rights mechanisms. (Res. 34/171, 17 Dec. 1979; Res. 35/197, 15 Dec. 1980; Res. 36/154, 16 Dec. 1981).

In 1982, the most recent United Nations seminar on the establishment of regional commissions on human rights was held, with special reference to Asia, in Colombo, Sri Lanka.

The United Nations' consistent position of encouraging the development of regional human rights mechanisms over the past some 15 years leads to the conclusion that the United Nations has anything but pre-empted regional bodies in human rights matters and is likely to welcome a broad reading of Article 64 on the Inter-American Court's advisory jurisdiction.

 

V. CONCLUSIONS

For the reasons stated, the Inter-American Court of Human Rights should interpret Article 64 to allow advisory jurisdiction in any treaty one or more American States are parties.

 

 


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