Observaciones Complementarias del Gobierno de Estados Unidos del 3 de julio de 1989.
July 3, 1989
Dr. Manuel Ventura
Inter American Court of Human Rights
Apartado 6906-1000
San Jose, Costa Rica
Re: Advisory Opinion Case (Colombia)
Dear Dr. Ventura:
Enclosed please find supplementary observations of the Government of the United States in the above-referenced case.
Yours sincerely,
(s)Jeffrey D. Kovar
Attorney-Adviser
Office of the Assistant Legal Adviser for
Human Rights and Refugees
REQUEST FOR AN ADVISORY
OPINION
SUBMITTED BY THE GOVERNMENT OF COLOMBIA TO THE
INTER AMERICAN COURT OF HUMAN RIGHTS
CONCERNING THE NORMATIVE STATUS OF THE
AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
SUPPLEMENTAL OBSERVATIONS OF THE UNITED STATES OF AMERICA
Table of Contents
I. ARTICLE 29 DOES NOT GIVE THE COURT JURISDICTION DIRECTLY TO RENDER AN ADVISORY OPINION ON THE NORMATIVE STATUS OF THE DECLARATION.
A. Article 29 Does not Incorporate the American Declaration into the American Convention; it is a Safeguard Clause that Preserves the Distinct and Separate Juridical Character of the American Declaration
B. The Court need not Interpret the Declaration Before it can Interpret the Convention
II. ARTICLE 64 DOES NOT GRANT THE COURT ADVISORY OPINION JURISDICTION TO INTERPRET THE DECLARATION SIMPLY BECAUSE THE DECLARATION HAS A ROLE IN THE INTER AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS
III. THE NORMATIVE STATUS OF THE AMERICAN DECLARATION HAS NOT CHANGED SINCE ITS ADOPTION
In briefs received by the United States after the hearing held in the above-referenced case on July 20, 1988, in San Jose, Costa Rica, two governments and amicus curiae have raised certain issues on which the United States wishes to make supplemental observations. They present two principal arguments for why the Court should have jurisdiction over this case despite the fact the American Declaration of the Rights and Duties of Man is not a "treaty" as required by the terms of the Court's grant of advisory opinion jurisdiction in Article 64 of the American Convention on Human Rights. The first is that the Court has jurisdiction under Article 64 to interpret the Declaration because the Declaration is expressly mentioned in Article 29 of the American Convention. The second is that because the Declaration is part of the inter American system for the protection of human rights, the Court must have power to interpret it as part of its interpretation of the OAS Charter and American Convention. The United states respectfully submits that neither of these arguments can overcome the straightforward and unambiguous language of Article 64, which does not grant the court jurisdiction to make a direct interpretation of the Declaration's normative status.
I. ARTICLE 29 DOES NOT GIVE THE COURT JURISDICTION DIRECTLY TO RENDER AN ADVISORY OPINION ON THE NORMATIVE STATUS OF THE DECLARATION.
In the view of the United States, the fact that the American Declaration of the Rights and Duties of Man is not a "treaty" as that term is understood in international law and practice should lead the Court summarily to dismiss the request brought by the Government of Colombia, on the ground that the Court is without jurisdiction to hear it. Article 64 gives the interpreting the American Convention or other "treaties concerning the protection of human rights in the American states". This provision is straightforward and unambiguous, and should be so applied. Briefs submitted by the Governments of Uruguay and Peru, as well as by the International Human Rights Law Group, do not disagree with the United States that the Declaration is not a "treaty". [1]
Despite the apparently unambiguous language of Article 64, however, various parties argue that the Court may issue an advisory opinion interpreting the normative status of the American Declaration under its Article 64 power to interpret the Convention. One argument asserts that Article 29 of the Convention makes the Declaration an integral part of the Convention, and that therefore the Court has the jurisdiction to interpret the Declaration. Another argument asserts that Article 29 prohibits the Court from interpreting the Convention in such a way that would limit or restrict the effect of the Declaration, and that therefore the Court must interpret the Declaration before it can interpret the Convention. In the view of the United States, both arguments misconstrue Article 29.
Article 29 states that,
No provision of this Convention shall be interpreted as:
a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.
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 part;
c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or
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.
A. Article 29 Does not Incorporate the American Declaration into the American Convention; it is a Safeguard Clause that Preserves the Distinct and Separate Juridical Character of the American Declaration
A simple reading of Article 29 demonstrates that it is intended to be a broad safeguard clause, ensuring that the scope of the American Convention is limited and cannot be extended in certain ways by interpretation. Such safeguard clauses are common in international treaty practice and are used to ensure that a new treaty will not be construed as a retreat from or limitation to other principles and laws.
Article 29 has three main purposes. First, it guarantees that the Convention cannot be interpreted to permit suppression or restriction of any rights and freedoms contained in it greater than the Convention itself permits (29(a) ). Second, it safeguards rights and freedoms then existing or which may exist in the future under national laws and international conventions, "inherent in the human personality", and flowing from a free and democratic polity (29(b)-(c) ). Finally, it preserves the juridical status of international "acts" such as the American Declaration without stating what that status may be. [2]
The primary purpose of Article 29(d) is to preserve a unique role for the American Declaration and "other international acts of the same nature" even after the creation of binding human rights norms through the Convention. Article 29(d) was not intended to give the Court power to rule on the juridical statute of the American Declaration. It was intended to safeguard the American Declaration's status in the Inter American human rights system.
Rather than elevating the Declaration's status to that of the Convention, as has been suggested, Article 29 reinforces the distinction between the two instruments' juridical status, and reaffirms the important role that purely moral and political statements of fundamental human rights principles have for the international protection of human rights. The drafters of the Convention included Article 29(d) not to incorporate the Declaration into the Convention but to ensure that the Declaration's principles could still be called on in a political and moral context even where an argument could be made that the strict letter of the Convention was not violated. Far from incorporating the American Declaration into the American Convention or making the former an integral part of the latter as has been argued, Article 29 expressly separates and distinguishes the two. The value of a safeguard clause is that it prevents the instrument in which it is included from having a limiting effect on outside principles or sources of law that may be broader or of a different character. If the Court has Article 64 jurisdiction to interpret the Declaration under article 29, it is only to reaffirm this.
Moreover, the United States believes that the reference in the Article 29(d) safeguard clause to the American Declaration actually limits the Court's jurisdiction to interpret the Declaration, rather than establishes that jurisdiction. As long as the Declaration and Convention remain in separate juridical spheres, as is guaranteed by article 29(d), it is generally unnecessary to interpret the Declaration in order to protect its non-legal principles from being affected by the legal principles of the Convention. The same would be true even if the Declaration were legally binding. Article 29 should therefore not be interpreted as giving the Court jurisdiction to interpret the Declaration.
B. The Court need not Interpret the Declaration Before it can Interpret the Convention
The suggestion that Article 29 requires the Court to interpret first the rights and duties contained in the American Declaration in every case arising under the Convention is not tenable. Applying this argument to the whole of Article 29 would lead to the conclusion that the Court has to interpret all of the sources of law and principles contained in subparagraphs (b)-(d), not just the American Declaration. In advisory opinion cases, therefore, the Court would be called upon to canvass the laws and Constitutions of all the States members of the Organization of American States, consider natural law, examine all international conventions and treaties relating to human rights, and review the hundreds and thousands of resolutions and declarations of international bodies that relate to human rights. Such a task would of course be impossible and could not be the intention of the drafters of the Convention.
II. ARTICLE 64 DOES NOT GRANT THE COURT ADVISORY OPINION JURISDICTION TO INTERPRET THE DECLARATION SIMPLY BECAUSE THE DECLARATION HAS A ROLE IN THE INTER AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS
The grant of jurisdiction in Article 64 is explicit. In the view of the United States the Court cannot go beyond that grant merely because it may be deemed desirable from a moral standpoint. The United States disagrees with those who state that international human rights law is somehow different, more malleable, or is created in less defined ways, because it involves the rights of individuals rather than states. The United States believes the Court should resist exhortations to extend its jurisdiction beyond the plain language of the Convention. In order to ensure the creation of legally binding norms that are actually observed and which can be enforced, international human rights law must be approached with the same deliberateness and respect for sovereignty that is shown in other areas of international law.
III. THE NORMATIVE STATUS OF THE AMERICAN DECLARATION HAS NOT CHANGED SINCE ITS ADOPTION
In its previous submissions and presentations to the Court, the United States has described in detail its view that the American Declaration continues to be a set of general human rights principles of a moral and political --rather than a legal-- character. The United States will not repeat these arguments here. The United States wishes, however, to reiterate its view that the American Declaration as a whole has not become binding as a matter of customary international law. U.S. practice and statements on this point have been unvarying.
Any argument that the American Declaration or the Universal Declaration of Human Rights or any of their individual principles [3] has become binding as a matter of customary international law must include historical exposition of the practice and opinio juris of states. Customary international law is only created by the consistent practice and opinio juris of states over a considerable period of time. The statements of academic commentators, international juridical bodies, or international organizations are not substitutes for state practice and opinio juris. No submission to this Court has described actual state practice coupled with opinio juris that would constitute evidence that the American Declaration or the vast majority of its principles have become binding as a matter of customary international law.
Footnotes
[1]
The United States views as without merit any argument based on the Southwest
Africa Cases that the court should treat the Declaration as a treaty under
Article 64 because it has the "character" of a treaty. As was explained
in detail in the previous U.S. submissions to the Court, the Declaration does
not have the "character" of a treaty. The United States notes in
contrast that the International Court of Justice found the League of Nations
Mandate for Southwest Africa to have the "character" of a treaty
because "it was intended and understood to be an international treaty
or convention embodying international engagements". Southwest Africa
Cases (Ethiopia and Liberia v. Union of South Africa), 1962 I.C.J. 319,
332 (judgment of Dec. 21, 1962). 
[2]
The United States noted on pp. 9-10 of its written observations submitted
to the Court on June 15, 1988, that the negotiating history of the Convention
demonstrates it was understood that the "effect" of the Declaration
was not a "legal" effect because the Declaration was not a legally
binding instrument.
[3]
In the view of the United States, even if the Court ruled that it had jurisdiction,
it should decline to rule on the status under customary international law
of any or all of the individual principles of the Declaration. Such an inquiry
should not be undertaken without the benefit of the facts of a contentious
case and the detailed briefs of interested parties.