Puntos de vista recibidos de varias organizaciones como Amici Curiae - Urban Morgan Institute for Human Rights of the University of Cincinnati College of Law (inglés únicamente)
Bert B. Lockwood,
Associate Professor and Director, Urban Morgan Institute for Human Rights
Ldo. Frederick Woodbridge, Jr.
University of Cincinnati College of Law
Cincinnati, Ohio 45221
U. S. A.
August 30, 1982
TABLE OF CONTENTS
Table of Authorities
Interest of Amicus Curiae
Statement of the Facts
Article 64 of the American Convention on Human Rights, conferring on the Inter-American Court of Human Rights the power to interpret within the scope of its advisory jurisdiction, not only the American Convention itself, but "other treaties concerning the protection of human rights in the American states," should be construed to enable the Court to interpret any treaty to which at least one American state is a party.
A. The ordinary meaning of the expression "other treaties concerning the protection of human rights in the American states," as used in Article 64, requires a broad construction pursuant both to classical rules of international law regarding treaty interpretation and to the exegetic principles enumerated in Article 31 of the Vienna Convention on the Law of Treaties
B. The ordinary or plain meaning of the expression "other treaties" encompasses any treaty concerning the protection of human rights in the Americas to which at least one American state is a party. The only ambiguities arise not from the scope of the Court's advisory jurisdiction but with regard to the exact meaning of "treaties" and the precise thrust of the qualifying phrase "concerning the protection of human rights in the American states." Both phrases should be read broadly
C. As the purpose of the American Convention on Human Rights is to further respect for the essential rights of man as set forth inter alia in numerous international instruments incorporated by reference into the Convention, consistency with that stated purpose, as well as consistency with the hermeneutic guidelines of Articles 29 and with the preamble, dictate that the Court, when interpreting the Convention, interpret within that framework the entire network of international instruments in question.
D. The nonbinding and discretionary nature of an advisory opinion in international law obviates any legal pitfalls, such as conflicts with other judicial or quasi-judicial bodies, or submission of requests for advisory opinions that would be in reality disguised contentious opinions
TABLE OF AUTHORITIES
Oil Co. Case (U.K. v. Iran), 1952 I.C.J. 93.
Competence of the General Assembly for the Admision of a State to the United Nations, 1950 I.C.J. 8.
Competence of the I.L.O. to Regulate Agricultural Labor, 1922 P.C.I.J. Ser. B, Nos. 2 and 3.
Exchange of Greek and Turkish Populations Case, 1925 P.C.I.J. Ser. B., No. 10.
Interpretation of Peace Treaties with Bulgaria, Hungary, and Rumania, 1950 I.C.J. 65.
Statute of Eastern Carelia, 1923 P.C.I.J. Ser. B, No. 5.
Statutes and rules of Court
of Human Rights: Rules of Procedure, O.A.S. Doc. OEA/Ser. L/V/III.3/doc. 13
Corr. 1 (1981) (corrected version reprinted in 20 I.L.M. 1289) (1981).
Statute of the Inter-American Court of Human Rights, in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights, 105. OEA/Ser.L/V/II. 50, doc. 6 (1980); reprinted in 19 I.L.M. 635 (1980).
Statute of the International Court of Justice, reprinted in International Court of Justice, Charter of the United Nations, Statute and Rules of Court and other Documents 61 (No. 4 1978).
The American Convention on Human Rights, 22 Nov. 1969, OEA/Ser. K/XVI/1.1, doc. 65, Rev. 1, Corr.1 (1970); 21 U.S.T. 607; T.I.A.S. no. 6847; (entered into force 18 July 1978); reprinted in IACHR, Handbook of Existing Rules Pertaining to Human Rights 27, OEA/Ser. L/V/II.50, doc. 6 (1980); 9 I.L.M. 673 (1970).
The American Declaration of the Rights and Duties of Man, 1948, reprinted in IACHR Handbook of Existing Rules Pertaining to Human Rights 17, OEA/Ser.L/V/II.50, doc. 6 (1980).
The Charter of the Organization of American States, 30 Apr. 1948, 2 U.S.T.S. 2394; T.I.A.S., No. 2361; 119 U.N.T.S. 48.
Convention for the Establishment of a Central American Court of Justice, Dec. 20, 1907, Martens Nouveau Recueil, 3d ser., Vol. III, at 94; 206 C.T.S. 78 (1907).
Convention relating to the Status of Refugees, opened for signature July 28, 1951, entered into force Apr. 22, 1954, 189 U.N.T.S. 137.
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, entered into force han. 4, 1969, 660 U.N.T.S. 195.
International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. Res. 2200 A, 21 GAOR 53, Supp. (No. 16), U.N. Doc. A/6316 (1966).
International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, G.A. Res. 2200 A, 21 U.C. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966).
League of Nations Covenant.
Protocol relating to the Status of Refugees, opened for signature, Jan. 31, 1967, entered into force Oct. 6, 1967, 606 U.N.T.S. 267.
United Nations Charter.
Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. Res. 217, U.N. Doc. A/810 (1948).
Vienna Convention on Consular Relations, Apr. 23, 1963, U.N. Doc. A/CONF. 25/13.
Vienna Convention on Diplomatic Relations, Apr.15, 1961, U.N. Doc. A/CONF. 20/10.
Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27 reprinted in 8 I.L.M. 679 (1969).
Buergenthal, The American and European Conventions on Human Rights, Similarities and Differences, 30 Am. U.L. Rev. 148 (1981).
Black's Law Dictionary,
4th ed. 1968.
Conferencia Especializada Interamericana sobre Derechos Humanos: Actas y Documentos, OEA/Ser.K/XVI/1.2 (1969).
Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-4: Treaty Interpretation and other Treaty Points in 33 Brit. Y.B. Int'l L. 203 (1957).
Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-4, 34 Brit. Y.B. Int'l 1 (1958).
F.L. Grieves, Supranationalism and International Adjudication (1969).
H. Grotius, De Iure Belli ac Pacis Libri Tres.
Lissitzyn, The International Court of Justice, (Carnegie Endowment United Nations Studies No. 6, 1951).
Report of the International Law Commission to the General Assembly, U.N. Doc. A/6309/Rev. 1 (1966), reprinted in  2 Y. B. INT'L L. COMM'N 169; U.N. Doc. A/CN.4/Ser. A/1966/Add. 1.
I.M. Sinclair, The Vienna Convention on the Law of Treaties (1973).
C. Tomuschat, International Courts and Tribunals with Regionally Restricted and/or Specialized Jurisdiction, in International Settlement of International Disputes: An International Symposium 315 (1974).
Vattel, Le Droit des Gens (1758, photo reprint 1915).
of the Amicus Curiae
The Urban Morgan Institute for Human Rights is a nonprofit institute associated with the College of Law of the University of Cincinnati in the United States. The purpose of the Institute is to educate and train prospective lawyers in the body of laws which have developed internationally, regionally, and nationally aimed at the protection of fundamental rights. The Institute edits the Human Rights Quarterly, a scholary journal published by The Johns Hopkins University Press. The Human Rights Quaterly is a comparative and international journal of the social sciences, philosophy and law, and provides a forum for research on public policy within the scope of the Universal Declaration of Human Rights. Additionally, the Institute conducts a clinical program wherein it offers legal advice on international human rights issues and submits briefs amicus curiae to judicial bodies in cases raising international human rights issues. The Institute is founded on the belief that a system of law offers the best protection for fundamental rights.
The issues presented by this request for an Advisory Opinion of the Inter-American Court of Human Rights pursuant to Article 64 of the American Convention on Human Rights raise important and central legal questions relating to legal obligations aimed at fostering and protecting international human rights. It is our considered opinion that the Statute of the Inter-American Court of Human Rights permits the Court to receive and consider this brief amicus curiae in the present case (see Art. 29, Statute of the Inter-American Court of Human Rights and Arts. 34 and 53, Rules of Procedure, Inter-American Court of Human Rights).
Pursuant to Article 64 of the American Convention on Human Rights, the Inter-American Court of Human Rights is empowered to grant advisory opinions "regarding the interpretation of this Convention (the American Convention) or of other treaties concerning the protection of human rights in the American states." The Government of Peru requests an Advisory Opinion from the Inter-American Court respecting the scope of its advisory jurisdiction within the meaning of Article 64. Specifically, does the phraes refer to and include:
a) Only those treaties adopted within the framework or under the auspices of the inter-Amreican 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?
of the Facts
The Government of Peru, as a Member State of the Organization of American States and in use of the power granted it by Article 64 of the American Convention on Human Rights, has requested an Advisory Opinion from the Inter-American Court of Human Rights regarding the scope of the Court's advisory jurisdiction under Article 64. The American Convention on Human Rights was opened for signature on November 22, 1969 and entered into force on July 18, 1978. The Inter-American Court of Human Rights was established pursuant to the provisions of the American Convention. The Court has set September 21, 1982, as a date for hearing in this case.
ARTICLE 64 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, CONFERRING ON THE INTER-AMERICAN COURT OF HUMAN RIGHTS THE POWER TO INTERPRET WITHIN THE SCOPE OF ITS ADVISORY JURISDICTION, NOT ONLY THE AMERICAN CONVENTION ITSELF, BUT "OTHER TREATIES CONCERNING THE PROTECTION OF HUMAN RIGHTS IN THE AMERICAN STATES," SHOULD BE CONSTRUED TO ENABLE THE COURT TO INTERPRET ANY TREATY TO WHICH AT LEAST ONE AMERICAN STATE IS A PARTY.
A. The ordinary meaning of the expression "other treaties concerning the protection of human rights in the American states," as used in Article 64, requires a broad construction pursuant both to classical rules of international law regarding treaty interpretation and to the exegetic principles enumerated in Article 31 of the Vienna Convention on the Law of Treaties.
The problems of treaty
interpretation have preoccupied diplomats and jurists ever since treaties
themselves were consigned to writing. These problems arise essentially from
two meta-juridical factors underscored by Vattel. among others: the inherent
ambiguity of language itself and the often unclear contours of the ideas and
concepts men attempt to express by means of that language.1 Attempts to formulate binding rules of
interpretation in order to promote greater legal certainty2
have rarely born universally accept fruit.3 Indeed,
the present Vienna Convention on the Law of Treaties4 incorporates
the three major approaches to treaty interpretation in its general rule of
interpretation in Article 31: subjective, objective, and teleological. However,
although the Vienna Convention does not establish a "rigid and utterly
unyielding hierarchy between the general rule and the supplementary means,"5 and although the three approaches are not
mutually exclusive,6 the International
Law Commission came down heavily in favor of the textual approach in the draft
version of Article 31 of the Vienna Convention: "The article...as already
indicated, is based on the view that the text must be presented to be the
authentic expression of the intentions of the parties; and that, in consequence,
the starting point of interpretation is the elucidation of the meaning of
That the process of elucidation is carried out first and foremost by recourse to the ordinary meaning of the terms of the treaty is sufficiently clear from the fact that the term "ordinary meaning" appears immediately after the mention of "good faith" in Article 31. Moreover, the Vienna Convention in this respect followed the unequivocal and often reiterated position of the International Court of Justice.8 This "plain meaning" rule was mentioned expressly by Grotius, writing in 1625, who cautions the reader about the dangers of straving from the "propriety of the words."9 In summary, it is clear that both customary international law, expressly recognized as applicable to inter-american relations in the Charter of the O.A.S.10 (as well as to interpretation itself by Art.31 para.3(c) of the Vienna Convention) and the Vienna Convention on the Law of the Treaties emphasize the importance of the text of an agreement as the starting point for any interpretative undertaking, which must be primarily concerned with the "ordinary meaning" of the terms employed in the text in question. The much decried maxim in claris non fit interpretatio can thus serve as a first stepping stone leading to the only adequate solution possible to the instant query: a broad interpretation of "other treaties."
B. The ordinary or plain meaning of the expression "other treaties" encompasses any treaty concerning the protection of human rights in the Americas to which at least one American state is a party. The only ambiguities arise not from the scope of the Court's advisory jurisdiction, but with regard to the exact meaning of "treaties" and the precise thrust of the qualifying phrase "concerning the protection of human rights in the American states." Both phrases should be read broadly.
A detailed analysis
of the syntactical configuration of the expression "other treaties concerning
the protection of human rights in the American states" (or "otros
tratados concernientes a la protección de los derechos humanos en los Estados
Americanos") reveals that it sets forth two requirements for an instrument
which, if met, earmark it for legitimate advisory interpretation by the Inter-American
Court: the instrument must be a treaty within the meaning of the American
Convention, and it must "concern the protection of human rights in the
American states." That there can be no other requirement narrowing the
semantic field of the expression beyond these two requirements is evidenced
convincingly by the use of the indefinite adjective "other" which
grammatically applies to any identical with the noun to which "other"
makes reference, in the instant case "American Convention". Thus,
any instrument which is (1) not the American Convention and (2) is (a) a treaty
and (b) in some way concerns the protection of human rights in the American
states, can be interpreted by the Inter-American Court under Article 64. The
decisive threshold qualifications are therefore that the instrument be a "treaty"
and that it "concern" human rights protection.
Any confusion to which Article 64 (1) gives rise is due to the well-known rule of eiusdem generis: "[W]here general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned."11 The temptation is present to conclude that the treaties concerning human rights in the American states must be of the same genus as the American Convention, i.e. they must (at the very least) be treaties elaborated within the inter-american framework. This rule does not apply here, however ("The rule, however, does not necessarily require that the general provison be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention."12), although it might also be suggested that had the drafters wished "other treaties" to refer to any human rights treaty whatsoever, the only qualifier being that at least one American state be a party, they would have eliminated the expression "in the American states." Not considering the obvious riposte that the eiusdem generis rule would create the same confusion whether "in the American states" is present or not, it must be conceded that a certain ambiguity is created, which will oblige the interpreter to turn to other methods of analysis to dispel it, concretely to other sections of the treaty itself and to the "object and purpose" of the same.
These criteria will be examined below. Before leaving the area of "plain meaning" analysis, it must be emphasized that "concerning" is on its face a very broad term, susceptible of referring to instruments which indirectly affect human rights as well as those which have human rights protection as their primary objective. The terms "protection" and "human rights" are not in issue.
It must be noted at this juncture that petitioners implicitly recognize the existence of general international legal instruments which affect the human rights situation in the American states, since their request for an advisory opinion would otherwise fall upon a moot point. The real question in issue is whether those instruments can be interpreted by the Inter-American Court in the exercise of its advisory jurisdiction.
As regards the plain meaning of the word "treaty," the first source of light is of course the Vienna Convention which defines "treaty" very broadly as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."13 The full breadth of the term "treaty" as used in the Vienna Convention is sufficiently indicated by the International Law Commission in its report to the U.N. General Assembly:
"Treaty," it is said, is a generic term since as explained therein," in addition to 'treaty', 'convention,' and 'protocol,' one not infrequently finds titles such as 'declaration,' 'charter,' 'convenant,' 'pact,' 'act,' 'statute,' 'agreement,' 'concordat,' whilst names like 'declaration,' 'agreement,' and 'modus vivendi,' may well be found given both to formal and less formal types of agreements."14
The Commission concludes that the "use of the term 'treaty' as a generic term embracing all kinds of international agreements in written form is accepted by the majority of jurists."15 The plain international meaning of "treaty" therefore encompasses such instruments as inter alia, the American16 and Universal17 Declarations of the Rights of Man, the O.A.S. Charter, the two U.N. Human Rights Covenants,18 and the U.N. Convention Against all Forms of Racial Discrimination,19 which instruments will come under the Court's advisory jurisdiction, provided of course that they be made between states and in writing.
C. As the purpose of the American Convention on Human Rights is to further respect for the essential rights of man as set forth inter alia in numerous international instruments incorporated by reference into the Convention, consistency with that stated purpose, as well as consistency with the hermeneutic guidelines of Article 29 and with the preamble, dictate that the Court, when interpreting the Convention, interpret within that framework the entire network of international instruments in question.
The Principle of Integration and Internal Consistency
An ambiguity jurstifying the piercing of the "plain meaning" veil and rendering legitimate the use of other interpretative materials only arises in cases of the type described by Sir Gerald Fitzmaurice, commenting on dictum of Lord McNair in the Anglo-Iranian Oil Co. Case.
"It is therefore not sufficient in itself that a text is capable of bearing more than one meaning. These meanings must be equally valid meanings; or at any rate, even if one may appear more possible and likely than the other, both must attain a reasonable degree of possibility and probability not only gramtically but as a matter of substance and sense." (emphasis in original).20
Assuming arguendo that such an ambiguity does exist prima facie, it is necessary to turn to an interpretation of the treaty as a whole. In fact, this principle of "integration" is usually applied simultaneously with the "ordinary meaning" rule, as implied by the Permanent Court in an early advisory opinion:
In considering the question before the Court upon the language of the Treaty it is obvious that the Treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense.21
The reference to
the context in which are inserted the terms to be interpreted is perfectly
consistent with Article 31 of the Convention of Vienna, which mentions context
immediately after and as an adjunct to, "ordinary meaning."22 The American
Convention, as a whole, makes reference to numerous international instruments
of a worldwide or universal nature, in such manner that the Court, when it
interprets the American Convention itself, will by necessity have to interpret
these "nonamerican" instruments. This being the case, the argument
that the drafters of the Convention when establishing the advisory jurisdiction
of the Court, wished to limit the types of treaties the Court could interpret
falls under its own weight. The catholic orientation of the Convention is
consonant with the tradition of international tribunals in this hemisphere
as evidenced by the Central American Court of Justice.23
References to international agreements worldwide in scope are found throughout the American Convention. Ilustrations of such references are found in the third and fourth paragraphs of the Preamble to the American Convention, Art. 27, Art. 29, Art. 70, Art. 75. Most of these do refer to the protection of human rights, but in any event, the necessity that the Court have broad powers of interpretation is obvious from the content of the American Convention, which will now be examined. In a second stage, reference will be made to the Rules of Procedure of the Court which are in absolute consonance with the present interpretation of the scope of the Court's advisory jurisdiction, as they are with the general principle of international law derived from the experience of the I.C.J. that treaty interpretation is by right the attribution par excellence of any international Court.
References to International Instruments in the American Convention
Prior to analyzing
the specific references in the American Convention to other international
instruments, it is imperative to emphazise that all the members of the Organization
of American States are parties to the United Nations Charter and member states
of that Organization. The reason that it is imperative to note this fact is
that Article 103 of the United Nations Charter states that where there is
a conflict between the Charter and "any other international agreement,"
the obligations under the Charter prevail. Thus, the human rights obligations
of member states under the Charter, and the Universal Declaration of Human
Rights is commonly held to be declarative of the human rights obligations
of the Charter, must by law prevail if there is a conflict with another instrument.
Surely, the drafters of the American Convention, and of Article 64 in particular,
were aware of this priority and saw the regional arrangement as complementary
to the human rights obligations of the Charter.
In the third paragraph of the Preamble, an unmistakable intent to embody in the American Convention aspects of the basic human rights presently recognized by mankind can be discerned: "Considering that these principles have been set forth 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..." (emphasis added). Reference to the Universal Declaration is made in the fourth paragraph of the Preamble also. The preamble of a treaty is considered a part of the text expressis verbis in Article 3 paragraph 2 of the Vienna Convention.
Another instance in which the Court would very likely have to interpret international agreements not limited to the American States is indicated by Art. 27(1), the gist of which is that a State may not, when suspending in emergency situations certain guarantees contained in the Convention, contravene any other obligations it may have "under international law." The keystone of "international law" being "pacta sunt servanda," the Court as mentioned might well be called upon by a member state to determine the extent of its obligations stemming from a treaty, to which it is a party. One can envision, for instance, a situation where a member state would have obligations under the 1951 U.N. Convention and 1967 Protocol Relating to the Status of Refugees, regarding sending a person back to a state where he has a well-founded fear of persecution, and the Court may need to address the obligation of the member state under the American Convention as well as under these United Nations instruments.
Where it becomes compelling, moreover, that the Court's advisory jurisdiction is not and cannot be limited to solely inter-american treaties if the American Convention is to retain a minimum of internal consistency, is in Article 29 concerning restrictions regarding interpretation. Article 29 states that "[n]o provision of this Convention shall be interpret 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; ...
d. excluding or limiting the effects that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have. (emphasis added).
This article explains
in effect the reference in Article 64(1) to "other treaties" and
the content of Article 64(2). The expression employed in Article 29, "another
convention to which one of the said states is a party," is devoid of
any mention of "american" content with respect to the instrument
in question, and contains quite obviously no qualifying or limiting modifier
other than the logically implied requirement that one of the parties to the
instrument is an American State. This is the only limit that was intended
on the Court's advisory jurisdiction, and explains why the second paragraph
of Article 64 which authorizes member states of the O.A.S. to request advisory
opinions was included.
It is to be noted that standing to request advisory opinions concerning "other treaties" was originally reserved to the principal organs of the OAS and later extended to the member states,24 whereas the member states had from the first draft on the right to request an advisory opinion with respect to the compatibility between those "other treaties" and their domestic law.25 Not surprisingly Article 29 itself underwent only minor stylistic modifications and paragraphs (b) and (d) came through the process practically unchanged. Since Article 29 is uncontestably the one that most forcibly calls for a broad interpretation of the Court's advisory jurisdiction, it is indeed significant that it underwent no change, practically speaking, while Article 64 would seem to have been modified in the sense of its being adjusted to Article 29.
Article 70 and 75 may also require that the Court interpret international instruments quite universal in nature: the Vienna Conventions relating to diplomatic and consular relations26 and the Vienna Convention on the Law of Treaties. The latter instrument does not directly concern the protection of human rights in the American States, yet its incorporation is excellent support for the proposition that the very nature of the subject matter involved and the convention embodying it mandate according the broadest possible scope to Article 64.
Nothing in the Rules of Procedure of the Inter-American Court of Human Rights, moreover, indicates that the judges will propound a restrictive interpretation of Article 64. On the contrary, Article 50 of the Rules repeats the language of Article 64: "1. If an interpretation is requested of other treaties concerning the protection of human rights in the American States, as provided for in Article 64.1..."27 Article 51 of the Rules also stays close to the wording of Article 64.2 which it implements, giving no hint that the "international instruments" mentioned are exclusively regional and not universal. The Rules of Procedure of the Court are thus consistent with a broad interpretation of Article 64.
It must not be forgotten, in conclusion, that treaty interpretation is an international question par excellence.28 The jurisdiction of the International Court of Justice (admittedly a sui generis (tribunal) over treaty interpretation was upheld by the Court itself, holding in essence that "the interpretation of the terms of a treaty...is a question of international law, which, by its very nature, lies within the competence of the Court."29 Thus a broad reading of the Court's advisory jurisdiction would clash with no precept of international law.
A further argument in favor of extending the terms of Article 64 to essentially non-american instruments as long as one American state at least is a party can be found in the difference between the advisory jurisdiction of the American Court and the European counterpart after which it was modelled.30 While "[t]he European Court has very limited advisory jurisdiction,...the power of the Inter-American Court is very broad -more extensive actually than that of any international or regional tribunal in existence today."31 The advisory jurisdiction of the European Court does not extend in reality beyond the interpretation of the European Convention and Protocols. In any event, it has never been exercised. What is directly germane to the scope of Article 64, however, is the fact that this considerable difference between the European and American Conventions was very likely consciously desired by the drafters of the American Convention. Present during the specialized conference called to elaborate the final draft of the American Convention were reknowned European experts in the human rights field, such as Professor Rene Cassin and Giorgio Balladore Pallieri. Professor Cassin pointed out during the working sessions certain conflicts which might arise between the enforcement mechanism of the United Nations Human Rights Covenants and the American Convention.32 It is quite probable that the large scope of the American Court's advisory jurisdiction as manifested in Article 64 is an answer to these problems and an attempt to take advantage of the European experience by ameliorating the judicial mechanism.
The commentaries to the draft Convention submitted by the I.L.O. may equally have contributed to the desire to stretch the horizon of the Inter-American Court's advisory capacity.33 The I.L.O. commentary addressed specifically the problem of the interpretation of international agreements within the framework of Article 29 of the American Convention with a view to avoiding conflicts between the different I.L.O. conventions and the American Convention. The I.L.O. observed that Article 29 probably covered its international labour conventions with the phrase "another convention to which one of the said states is a party," and this would tend to reinforce the argument that the Court in the last analysis has jurisdiction to interpret worldwide instruments such as, precisely, the I.L.O. conventions.
D. The nonbinding and discretionary nature of an advisory opinion in international law obviates any legal pitfalls, such as conflicts with other judicial or quasi-judicial bodies, or the submission of requests for advisory opinions that would be in reality disguised contentious opinions.
to extending the Inter-American Court's advisory jurisdiction with respect
to interpretation of international instruments beyond the confines of strictly
inter-american treaties might stem from two factors: (1) an interpretation
by the Inter-American Court of a universal human rights treaty might clash
with an interpretation of the same instrument given by the mechanism established
under that instrument for "authentic" interpretation of the same;
and (2) states parties to the American Convention or members of the O.A.S.
might attempt to submit a request for what is in reality a contentious judgment,
forcing it into the mold of Article 64. Of course, if the Court's advisory
opinion jurisdiction is discretionary, the Court may decline to render the
requested "contentious" opinion on grounds of propriety. In the
case of pre-existing authoritative or "authentic" interpretation
by an organism established pursuant to the treaty being interpreted, the Court
could either follow that interpretation, or, again, it could decline to render
its opinion, basing that exercise of its discretion also on grounds of propriety.
Both the P.C.I.J. and the I.C.J. have made extensive use of their advisory jurisdiction, encountering in the process the very problems at issue here. There has arisen what might be termed an international law of advisory opinions, which, it is submitted, will apply to the Inter-American Court, removing most of the force of the above objections. That both these Courts were given discretion as to whether to reply or not to the request must not be lost sight of.34 This at least was the conclusion the Courts themselves reached, and it would appear that their practice has always conformed to this opinio iuris.
The first point to be emphasized with respect to advisory opinions is that they are not legally binding upon the parties requesting them nor upon parties collaterally affected by them. In the Peace Treaties case, the I.C.J. stated explicitly that "[t]he Court's reply is only of an advisory character: as such, it has no binding force."35 The lack of binding constraint of advisory opinions in general should serve to dissipate any irritation the exercise of the Court's jurisdiction might create.
As a corollary to this nonbinding character, the I.C.J. has affirmed that the consent of the parties involved in the questions to be decided is not necessary, i.e. their lack of consent does not impede the court's taking cognizance of a matter. "The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States.36
Should a matter actually be in dispute between two states, therefore, that fact alone no longer requires that an International Court abstain from giving an advisory opinion. The I.C.J. thus seems to have broken with the principal P.C.I.J. precedent represented by Eastern Carelia case,37 in which consent of the parties was an element sine qua non of the Court's exercise of advisory jurisdiction. Significantly, the I.C.J. distinguishes Eastern Carelia as follows:
"[T]hat Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties and that at the same time it raised a question of fact which could not be elucidated without hearing both parties."38
of the parties would conceivably be required only if the subject matter of
the requested advisory opinion was tantamount to the decision of a dispute
actually pending between two parties, and if the presence and collaboration
of all parties to the dispute were essential to judicial fact-finding. Since
the Inter-American Court's advisory jurisdiction centers on interpretation
of legal texts, both intra and extraly seized with "litigious" requests.
Should it have to decide on a matter of law involving to any extent an interparty
dispute, it could inconformity with the above principles, either give its
opinion as requested without having to require the consent of any party other
than (logically) that of the petitioner, basing its action on the lack of
any actual, open dispute or on the fact that the issue is one of law (in which
case any party collaterally affected will not be heard to object), or decline
to render an opinion for the reasons set forth by the I.C.J. upon distinguishing
Eastern Carelia in the Peace Treaties case.
The Court will not lose sight of course of the essentially legal nature of its advisory jurisdiction. And although strictly speaking international law does not generally require, as indicated, that all parties in interest consent to the Court's advisory jurisdiction, it is to be noted that Article 52 of the Rules of Procedure provides for the forwarding of requests for advisory opinions "to any States which might be concerned in this matter" as well as to the Secretary General of the O.A.S. for information to the organs of the Organization, all of which entities are authorized to submit written observations. This is sound judicial policy, and one more reason why the breadth of the Court's advisory jurisdiction should encounter no insurmountable legal obstacles. As one commentator has noted as a practical matter,even though parties' consent may not be strictly required, "the attitude of the parties is a limiting factor on the usefulness of advisory opinions in the settlement of disputes."39 Actively soliciting written submissions from all concerned will do much to avoid asperities.
A problem much more likely to trouble the Inter-American Court in the exercise of its advisory jurisdiction is that of potentially coming into conflict with a tribunal established by the terms of a treaty the Inter-American Court is called upon to interpret. Sir Gerald Fitzmaurice maintains that the matter cannot be dismissed by brandishing the nonbinding character of an advisory opinion, since the opinion would necessarily prejudice the future interpretations of the treaty tribunal to some extent and if future cases involving the same issue were to be deemed resolved by the Inter-American Court's interpretation, this would be equivalent to frustrating expectations of parties to the treaty thus nonauthentically interpreted. "The difficulty," concludes Fitzmaurice, "is one which, like others in this field cannot be solved by any general formula, and its solution must depend on the individual circumstances of each case."40
It is apparent that whenever one of the aforementioned difficulties arises, it worst comes to worst and the Court finds itself entre la espada y la pared, it might seek a solution by declining to render an opinion, an option which finds solid support in the experience of previous international courts. But is this course open to the Inter-American Court? Article 64(2) would seem by its use of the verb "may" (podrá) to authorize a permissive interpretation. Article 64(1) however does not address the question, and it is precisely this first paragraph which might give rise to the thorniest dilemmas. The Rules of Procedure do not indicate expressly that the Court may decline to give an advisory opinion. Even the preliminary objections of Article 27 (applicable to the advisory procedure by virtue of Article 55) do not suspend the proceedings. Given the international precedents, however, it is clear that the Court enjoys the possibility of abstaining, for reasons of propriety, from any pronouncement on the substance of a request, even if the Rules of Procedure do require that hearings be held and the abstention be embodied in a formal "opinion". There is no prohibition of non liquet under Article 64, and in last analysis, that safety valve completes the panoply of devices enumerated above which insure the perfect consistency with international law of the broad interpretation of Article 64 that we respectfully submit, should be embraced by this Court.
The ordinary meaning of the phrase "other treaties concerning the protection of human rights in the American states" in Article 64 of the American Convention on Human Rights means any treaty dealing with human rights to which at least one American state is a party. The correctness of this reading of Article 64 receives irrefutable support from an examination of other provisions of the American Convention and its object and purpose. Thus, the American Court of Human Rights under its advisory jurisdiction is empowered to interpret any treaty concerning the protection of human rights to which a member state of the Organization of American States is a party.
/s/ Bert. B. Lockwood, Jr., Esq.
Associate Professor and Director, Urban Morgan
Institute for Human Rights
University of Cincinnati College of Law
Cincinnati, Ohio 45221 U.S.A.
/s/Ldo. Frederick Woodbridge, Jr.
University of Cincinnati College of Law
Cincinnati, Ohio 45221 U.S.A.
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