Observaciones del Estado de Estados Unidos.
I. The Plain Language of Article 64 Limits the Scope of the Court's Advisory Jurisdiction to Treaties, Thereby Excluding the Declaration
A. Treaties are Written Agreements Between States Undertaken with the Intention of Creating Legal Rights and Obligations.
B. The American Declaration of the Rights and Duties of Man was not Intended to be Legally Binding and is Therefore not a Treaty.
II. The Court Should Decline Jurisdiction to Determine the Issue of the Precise Normative Status of the Declaration.
III. The Normative Status of the Declaration Remains That of a Set of Nonbinding General Human Rights Principles
A. The Protocol of Buenos Aires did not Affect the Normative Status of the American Declaration.
B. The Subsequent Practice of the Member States Confirms that the Declaration Remains a Nonbinding Instrument.
V. The Extent of the Court's Power to Interpret the Declaration is Limited by the Normative Status of the Declaration
Pursuant to Article 64 of the American Convention on Human Rights, the Government of Colombia has requested an advisory opinion of the Inter American Court of Human Rights. The Colombian request raises essentially two issues, one narrow and one broad. The first is narrowly defined by Colombia as follows:
Does Article 64 authorize the Inter American Court of Human Rights to render advisory opinions at the request of OAS member states or OAS organs seeking an interpretation of the American Declaration of the Rights and Duties of Man, which was adopted in 1948 by the Ninth International Conference of American States meeting in Bogota, Colombia?
The second is broader:
What is the normative status of the Declaration in the legal framework of the inter-American system for the protection of human rights?
Colombia notes that it seeks the Court's opinion on these issues because all member states of the O.A.S. (even those such as the United States that are not party to the Convention) have binding human rights obligations under the Charter; the Charter creates the Inter-American Commission on Human Rights as a consultative organ whose function is to "promote the observance and protection of human rights"; and the Statute of the Commission names the Declaration as the source of the human rights it is charged to promote with respect to states that are not party to the Convention.
In the view of the United States, the American Declaration of the Rights and Duties of Man represents an important statement of human rights principles forming the foundation of the Inter-American system for the protection and promotion of human rights [1]. Complementing the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations, which is respected and referred to by domestic and international courts around the world, the American Declaration provides the underlying standard against which the Commission may review the human rights performance of all O.A.S. member states. However, because the Declaration is not a "treaty" as required by Article 64, the United States believes that the Inter American Court of Human Rights does not have jurisdiction to render an advisory opinion giving a direct interpretation of the Declaration.
It is beyond dispute that the O.A.S. member states, in adopting the Declaration, did not intend to undertake binding legal obligations. Moreover, nothing that has occurred subsequently -- including the adoption of the Protocol of Buenos Aires in 1967 -- has changed the juridical status of the Declaration. Indeed, quite the contrary: the negotiations of the American Convention on Human Rights demonstrate unambiguously the continuing view of the member states that the Declaration is a nonbinding statement of principles. The United States must respectfully but emphatically note that the Court is not empowered to impose the Declaration as a binding legal commitment on those member states that, in the exercise of their sovereignty, have not become parties to the American Convention. Nevertheless, it is the view of the United States that while the Court is not able to render direct interpretations of the Declaration under its Article 64 powers, it can interpret and apply the Declaration -- with full consideration of the limits of the Declaration's normative status -- in the exercise of its power to render opinions on other matters, including the human rights undertakings of the member states under the Charter of the Organization of American States.
Article 64 of the American Convention on Human Rights provides that the Inter American Court of Human Rights may be consulted on the proper interpretation of the Convention itself or "of other treaties". In the view of the United States, the advisory jurisdiction of the Inter American Court should be interpreted in conformity with the recognized international meaning of the term "treaty".
In brief, under generally accepted principles of international law, the term "'treaty' means an international agreement concluded between States in written form and governed by international law". See, e.g., Vienna Convention on the Law of Treaties art. 2(a), opened for signature May 23, 1969, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331; Report of the International Law Commission to the General Assembly, U.N. Doc. A/5209, [1962] II I.L.C. Ybk. 157, 161-63 (commentary on the definition of "treaty"). An essential requirement for a written instrument to constitute a "treaty" is the intention of the parties to create legal rights and obligations or to establish relations governed by international law. See id.; 1 D.P. O'Connell, International Law 195 (2d ed. 1970); A. McNair, Law of Treaties 6 (1961). If that intention does not exist, an instrument, though perhaps an important statement of policy or aspirations, is without binding legal effect. Such an instrument does not create legal rights or responsibilities, and non-compliance with its provisions cannot give rise to any Nonbinding International Agreements, 71 Am. J. Int'l L. 296, 300 (1977).
The American Declaration of the Rights and Duties of Man was, until the advent of the American Convention, the central document concerning the protection of human rights in the Americas. Its adoption in 1948 represented an historic milestone in the development of an inter American human rights system. However, the Declaration is a statement of general principles, not a legally binding instrument. Consequently, it does not constitute a "treaty" within the meaning of Article 64 of the American Convention on Human Rights.
The American Declaration was adopted in the form of a simple resolution of the Ninth International Conference of American State. See Res. XXX, Final Act of the Ninth International Conference of American States, Bogota, Colombia, March 30-May 2, 1948, at 38 (Pan American Union). The Conference expressly considered the question of the juridical status of the Declaration, and decided that it should not have the force of a treaty and should not be made an annex to the Charter of the Organization. See U.S. Dept. of State, Report of the Delegation of the United States of America to the Ninth International Conference of American States at 35-36 (Publ. No. 3263, 1948). The Conference also went on record with an understanding that Article 5(j) of the charter (now Article 3(j) ) did not, through incorporation by reference, transform the provisions of the American Declaration into binding obligations. Id. A year later, the Inter-American Juridical Committee, which had drafted the original version of the Declaration, restated the understanding of the Bogota Conference that "it is obvious that the Declaration of Bogota does not create a legal contractual obligation", and that, as a result, the Declaration lacked the status of "positive substantive law". Inter-American Juridical Committee, Report to the Inter American Council of Jurists Concerning Resolution XXXI of the Bogota Conference, Sept. 26, 1949, reprinted in Pan American Union, Human Rights in the American States 164-65 (1960). This history is unambiguous that the American Declaration was not intended to create binding legal obligations and therefore was not regarded by the member states as a treaty.
While the United States agrees wholeheartedly with the Government of Colombia that the issues raised in its request are ultimately of "great importance", the United States is of the view that the broad, abstract nature of the issues raised should dissuade the Court from attempting to settle definitely the question of the normative status of the Declaration in a decision under its Article 64 powers. Article 64 gives the Court an extraordinary power, unique in international practice, to render advisory opinions at the request of any of the member states of the O.A.S. on points of interpretation of any treaty concerning human rights applicable to American states. See "Other Treaties" Subject to the Consultative Jurisdiction of the Court, Advisory Opinion No. OC-1/82, Series A, No. 1 (Sept. 24, 1982) at para. 14-17. In light of the broad reach of this power, the Court found in the "Other Treaties" opinion that it must be extremely cautious in exercising the power where to do so would weaken its contentious jurisdiction or weaken or alter the system provided by the Convention in a way that might impair the rights of individual victims of human rights violations. Id. at para. 31; see also Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion No. OC-5/85, Series A, No. 5 (Nov. 13, 1985), at para. 21. The Court recognized that broad exercise of advisory opinion jurisdiction at the request of states could undermine or nullify the important role of the Commission in investigating and reporting on cases brought by individuals. Such a result could effectively reduce participation by individuals in the determination and exposition of human rights protections in the inter American system. See "Other Treaties", at paras. 18-31.
The United States believes the Court should also be reluctant to exercise jurisdiction over a request for an advisory opinion where, as here, questions raised by the request encompass complex issues relating to the relationship of the Court's decisions to the O.A.S. member states that are not parties to the Convention. In the U.S. view, the Court would be in a better position to answer the broad-reaching abstract questions raised in the present request with the benefit of specific factual contexts.
In this connection, it is the U.S. view that the Court should decline to make a determination of the precise normative scope of the Declaration in the inter-American system and confine itself to the first part of Colombia's request set out above, namely whether the Declaration is a "treaty" under the terms of Article 64. If the Court finds that the Declaration is not a treaty, then the Court should determine not to exercise its jurisdiction as a matter of discretion, preferring to leave the issue of the precise normative status of the Declaration to case-by-case adjudication in contentious cases brought before it or in more narrowly drawn advisory opinion requests.
If the Court is nonetheless persuaded that it should exercise jurisdiction over all the questions presented in this case, it is the U.S. view that the normative status of the Declaration remains unchanged by the Protocol of Buenos Aires.
A. The Protocol of Buenos Aires did not Affect the Normative Status of the American Declaration.
In some cases involving the United States of America, the Inter American Commission on Human Rights has taken the position that the American Declaration of the Rights and Duties of Man, although not adopted as a binding legal instrument, has acquired this status as a result of the entry into force of the Protocol of Buenos Aires. see Case 2141 (U.S.), res. 23/81, OEA/Ser.L/V/II/52, Doc. 48, Mar. 6, 1981; Case 9647 (U.S.), Res. 3/87, OEA/Ser.L/V/II.69, at 30. The United States submits that this position is not supported by the facts or by general principles of international law. For the Protocol of Buenos Aires to have had such an effect in the absence of any explicit language, its drafters must have intended to elevate the status of the Declaration. There is no evidence, however, of such an intention. Rather, the Protocol of Buenos Aires expressly anticipated the adoption of an inter-American convention on human rights, and made no reference whatsoever to the American Declaration. See Protocol of Buenos Aires, art. 112.
In support of its view that the Declaration has become legally binding, the Inter American Commission has cited without further explanation five articles of the revised O.A.S. Charter: Articles 3(j), 16, 51(e), 112, and 150. None of these provisions supports the Commission's conclusion.
1. Article 3(j). Article 3(j) states, "The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex". "Proclaim" is not a word implying obligation. This provision is identical to Article 5(j) of the original Charter, which, as the Ninth International Conference explicitly stated, did not incorporate the American Declaration by reference. The renumbering of Article 5(j) in the amended Charter as Article 3(j), with no change in language, obviously could have no effect on the article's meaning or significance.
2. Article 16. Like Article 3(j), Article 16 of the amended Charter is not a new provision; it is identical to former Article 13. It provides, "Each State has the right to develop its cultural, political and economic life freely and naturally. In this free development, the State shall respect the rights of the individual and the principles of universal morality". Although Article 16 does make reference to "respect[ing] the rights of the individual", it is primarily concerned with the right of each State "to develop its cultural, political, and economic life freely and naturally". The Ninth International Conference expressly viewed the Declaration as a nonbinding instrument, notwithstanding the existence of former Article 13 in the original O.A.S. Charter. The Conference apparently never considered whether former Article 13 had any relationship to the American Declaration, probably because the language of Article 13 left no room for the argument that provision had any effect on the status of the Declaration. Again, since the Protocol made no changes in this language, its reiteration in the Revised Charter as Article 16 obviously had no effect on the juridical status of the Declaration.
3. Article 51. Article 51 of the revised Charter modified Article 32 of the original Charter by including the Inter American Commission on Human rights as an organ of the O.A.S. This article enhanced the authority of the Commission and not of the Declaration. It gave new institutional legitimacy to the Commission by providing that the Organization may accomplish its purposes through the Commission. As such, actions of the Commission could be felt to carry more weight. Prior to the Protocol of Buenos Aires, the Commission had operated as an "autonomous entity" of the O.A.S., without a clear constitutional basis in the Charter. There is no reason to conclude, however, that merely by formalizing the existence of the Commission, the signers of the Protocol intended to transform the juridical status of the Declaration.
4. Article 112. Article 112 provides for the Inter American Commission on Human Rights and states that "an structure, competence, and procedure of this Commission, as well as those of other organs responsible for [human rights] matters". This article refutes rather than supports the Commission's position by explicitly recognizing the need for a binding legal instrument for the protection of human rights in the Americas; it contains no suggestion that the American Declaration had already been or was being elevated to that status.
5. Article 150. Article 150 of the amended Charter provides that, until the American Convention on Human Rights comes into force, "the present Inter American Commission on Human Rights shall keep vigilance over the observance of human rights". Because Article 150 was clearly intended as a transitory provision, there is a threshold question whether it has any continuing effect, as the Convention has now entered into force. The continuing competence of the Commission with respect to member states that are not parties to the American Convention is established, not by Article 150, but rather by the 1979 Statute of the Commission.
Even if Article 150 has some continuing vitality, however, there is no reason to interpret it as elevating the American Declaration to treaty status. Prior to the adoption of the Protocol of Buenos Aires, the Commission had operated under a statute that declared, "for the purpose of this Statute, human rights are understood to be those set forth in the American Declaration of the Rights and Duties of Man". Statue of the Inter American Commission on Human Rights, art. 2, reprinted in Organization of American States, The Organization of American States and Human Rights 1960-1967, at 601 (1972). During those years, the Commission had "carr[ied] out its assignment of promoting respect for human rights", id. at art. 9, although neither the Declaration nor the Commission's Statute created any legal obligations. There is no reason to believe that the Protocol's authorization, in an expressly transitory provision, of the continued "vigilance" of the "present" Commission entailed a fundamental transformation of the Declaration or the Statute of the Commission, or even that it somehow entailed a permanent "incorporation" of the Declaration into the Charter. Indeed, a fundamental transformation was envisioned, but the means of that transformation was to be through the creation of a new conventional regime, not the sub silentio modification of the existing Declaration. Pending the adoption of the new conventional regime, Article 150 merely left in place the "present" system, under which the Declaration had been regarded as a nonbinding instrument.
More generally, the United States notes that the elevation of the American Declaration to a binding legal instrument would have been a momentous development in the inter-American human rights system. Certainly, if the Protocol of Buenos Aires had been intended to achieve this result, it would have been extensively discussed during the negotiations. Instead, however, the available records of the negotiations of the Protocol are silent with respect to the juridical status of the Declaration.
When an inter- American human rights treaty was ultimately adopted -- namely, the American Convention on Human Rights -- it was through a process of long and careful negotiations. Moreover, even after its adoption at the Conference of San Jose, the decisions by member states whether to assume the legal obligations contained in the Convention were not made lightly. It look over eight years for a sufficient number of states to ratify the Convention for its entry into force. A number of member states, including the United States, have still not become party to the Convention. Given this background, it is inconceivable that the member states, without discussion, casually or implicitly agreed to accept the provisions of the Declaration as binding legal obligations [2]. Indeed, although the United States is still deliberating whether to ratify the Convention, if the United States were to undertake binding legal obligations in the field of human rights, it believes that the Convention is better suited for this function than the Declaration, which was adopted as a general statement of principles and lacks the precision of a treaty.
The text and negotiating history of the American Convention on Human Rights demonstrates that, even after the adoption of the Protocol of Buenos Aires, the member states continued to regard the Declaration as a nonbinding instrument. In the draft convention prepared by the Inter-American Commission on Human Rights, an article was included stating:
No Provision of this Convention shall be interpreted as:
...
(d) Excluding or limiting the legal effect which the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.
Art. 27, Doc. OEA/Ser.L/II.19/Doc. 48 (English) Rev. 1 (Oct. 2, 1968) (emphasis added). The United States commented on this article, noting, "The word 'legal' should be deleted from the subparagraph because a declaration such as the American Declaration of the Rights and Duties of Man does not, in and of itself, have any legal effect". American Convention on Human Rights, working Doc. 10 (english) (Oct. 6, 1969), reprinted in 2 T. Buergenthal & R. Norris, Human rights: The Inter American System, Booklet 13, at 165 (1982). This view was adopted by the Conference and the article as adopted by the Conference (present Article 29) referred simply to the "effect" of the Declaration rather than the "legal" or "juridical" effect. Id.., Booklet 12, at 143.
The preamble to the Convention also reflects the view that the Declaration is not a binding legal instrument. In the preamble, the states signatory took note of the "principles" set forth in the American Declaration, and explained the justification for a convention "reinforcing or complementing the protection provided by the domestic law of the American States". If the Declaration were of treaty status, then its provisions would be binding obligations, not "principles". Moreover, if the Declaration were of treaty status, then the American Convention would have been the second general convention on human rights, and its terms would either supplement and refine, or replace, the terms of the Declaration. But the preamble of the American Convention shows that the understanding of the states signatory was that the Convention was "reinforcing or complementing" domestic human rights protections, not an existing international treaty regime.
Finally, neither the Commission's Statute nor its Regulations have altered the nonbinding nature of the American Declaration. The only references to the Declaration in the present Statute applicable to nonparties to the Convention appear in Articles 1 and 20. These articles provide that the rights set forth in the Declaration are the standard by which the Commission may carry out its functions and powers with respect to member states that are not parties to the Convention. These functions and powers of the Commission, which are primarily to review the human rights performance of member states and make recommendations to them, do not depend on the Declaration's being a binding legal instrument. For example, Article 1 declares that the Commission was "created to promote the observance and defense of human rights and serve as consultative organ of the Organization". In articles 18 and 20 the Commission's powers are defined in the following terms: "pay particular attention to", "examine... and make recommendations", "develop an awareness of human rights", "prepare .... studies", "request", "respond to inquiries", "submit an annual report", "conduct on-site investigations", "submit the program-budget", etc. These are not functions that carry an implication that the Declaration is binding. In fact, these articles continue in effect the rules of the "old" Commission -- rules that, as explained above, did not depend on the Declaration's being a binding legal instrument. In any case, both the Statute -- which is a General Assembly resolution -- and the Commission's Regulations -- which are internal rules of procedure -- lack the authority to change the juridical status of the Declaration.
In sum, the Declaration, which was adopted as a general set of principles, and around which the Commission and its functions have been created, has never had its fundamental legal character altered. It has simply been carried forward into the evolving inter-American system. It is the system and the institutions protecting human rights in the inter-American system that have changed their legal character, not the Declaration.
In the event the Court does reach the issue of the normative status of the Declaration, then, the U.S. view is that the Declaration remains what it was when it was adopted: an agreed set of nonbinding general principles. In the case of member states that are party to the Inter-American Convention on Human Rights, the Declaration now serves as nonbinding general principles underlying the binding obligations of the Convention to which the Commission and the Court may have reference in interpreting those obligations. In the case of member states that have not undertaken binding human rights obligations under the Convention, the Declaration remains as it was before the Protocol of Buenos Aires, an agreed set of nonbinding general principles against which those states' compliance with their human rights undertakings under the Charter may be evaluated by the Commission.
Although Article 64 does not give the Inter-American Court of Human Rights the power to render an advisory opinion directly on a question involving the Declaration, the Court may still refer to and interpret the Declaration in the course of rendering opinions in individual cases or in advisory opinions under Article 64. Because the Declaration represents a set of agreed principles forming the foundation of the inter-American system of human rights protection established by the Charter, the Declaration may be adverted to and drawn upon in interpreting the binding provisions of the Charter, the Convention and other treaties applicable to the protection of human rights in the American States. See "Other Treaties" Subject to the Consultative Jurisdiction of the Court, Advisory Opinion No. OC-1/82 (Sept. 24, 1982) at para. 52. However, the Declaration's limited normative status must be recognized. The Declaration serves only as common principles guiding the interpretation of other, binding provisions.
In the view of the United States, the Declaration may not be interpreted by the Court or the Commission to bind member states of the O.A.S. directly. Even if the Court were to find that the Declaration somehow was "incorporated" in the Charter by the Protocol of Buenos Aires, which the United States vigorously disputes, the statements in the Declaration would not change their juridical character within the inter-American system: they would remain a nonbinding set of general principles. Thus the Court and the Commission would only be empowered to refer to those principles to seek guidance in interpreting the binding obligations of the Charter, the Convention and other applicable treaties.
The American Declaration of the Rights and Duties of Man represents a noble statement of the human rights aspirations of the American States. Unlike the American Convention, however, it was not drafted as a legal instrument and lacks the precision necessary to resolve complex legal questions. Its normative value lies as a declaration of basic moral principles and broad political commitments and as a basis to review the general human rights performance of member states, not as a binding set of obligations.
The United States recognizes the good intentions of those who would transform the American Declaration from a statement of principles into a binding legal instrument. But good intentions do not make law. It would seriously undermine the process of international lawmaking -- by which sovereign states voluntarily undertake specified legal obligations -- to impose legal obligations on states through a process of "reinterpretation" of "inference" from a nonbinding statement of principles.
Notas
[1]
The human rights principles of the American Declaration, as well as the O.A.S.
Charter and the Convention, are of two distinct kinds. The first kind -- civil
and political -- set limits to state authority over individuals. They are
capable of immediate implementation by states. The enjoyment of these rights
is necessary for the enjoyment of all other rights. The second kind -- economic,
social and cultural -- express standards of well-being the realization of
which requires progressive development of a technical and economic nature
from member states acting individually or in cooperation. 
[2]
In this regard, it is significant that the U.S. Department of State, in
testimony before the United States Senate concerning the Protocol, indicated
that the Protocol did not create new legal obligations for the United States
and made no mention of the American Declaration. Amendments to the OAS
Charter, Hearing before the Senate Committee on Foreign Relations, 90th
Cong. 1st Sess., Exec. L, Feb. 6, 1968. Similarly, the Committee on Foreign
Relations of the U.S. Senate, in recommending advice and consent to ratification,
stated its view that the Protocol would not expand U.S. obligations in the
economic and social fields. It did not refer to the American Declaration and
stated simply, "Provision is made for a commission to promote the observance
and protection of [human] rights, but the structure, competence, and operation
of the commission are left to be determined by a yet-to-be negotiated inter-American
convention on human rights". Amendments to the Charter of the Organization
of American States, Exec. Rep. No. 1, 90th Cong. 2d Sess., April 4, 1968,
at 6.