Amicus Curiae de "The International Human Rights Law Group".


IN THE
INTER AMERICAN COURT
OF HUMAN RIGHTS

No. OC-10/88

IN RE: 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

BRIEF OF
THE INTERNATIONAL HUMAN RIGHTS LAW GROUP,
AS AMICUS CURIAE

D. LEA BROWNING, ESQ.
Acting Legal Director,
International Human Rights Law Group
1601 Connecticut Avenue, N.W.
Suite 700
Washington, D.C. 20009
202/232-8500
Attorney for Amicus Curiae

Of Counsel:
Professor Claudio Grossman
American University
Washington College of Law

Amy Young, Esq.
Executive Director
International Human Rights Law Group

December 2, 1988


TABLE OF CONTENTS

 

TABLE OF AUTHORITIES

I. INTEREST OF AMICUS CURIAE

II. QUESTIONS PRESENTED

III. ARGUMENTS

 

A. THE AMERICAN CONVENTION ON HUMAN RIGHTS AUTHORIZES THE COURT TO INTERPRET THE AMERICAN DECLARATION

 

1. ARTICLE 29 OF THE AMERICAN CONVENTION IMPLICITLY REQUIRES THAT THE COURT HAVE JURISDICTION TO INTERPRET THE AMERICAN DECLARATION

 

2. THE AMERICAN DECLARATION HAS ACQUIRED THE CHARACTER OF A TREATY AND THUS SHOULD BE INCLUDED WITHIN THE SCOPE OF THE COURT'S "OTHER TREATIES" JURISDICTION UNDER ARTICLE 64(1) OF THE AMERICAN CONVENTION

 

B. THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN CREATES NORMS THAT ARE BINDING ON ALL OAS MEMBER STATES

 

1. THE NORMATIVE STATUS OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS IS NOT NECESSARILY STATIC, BUT CAN CHANGE OVER TIME

 

2. THE EVOLUTION OF THE NORMATIVE STATUS OF THE AMERICAN DECLARATION IS SIMILAR TO THAT OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

 

3. THE PRACTICE OF THE INTER-AMERICAN COMMISSION, THE PRACTICE OF MEMBER STATES, AND THE PROTOCOL OF BUENOS AIRES INDICATE THAT THE AMERICAN DECLARATION CONTAINS NORMS THAT ARE NOW BINDING ON ALL MEMBER STATES AS CUSTOMARY INTER- NATIONAL LAW

 

a. Practice of the Commission

b. Practice of Member States

c. Amendments to the OAS Charter

IV. CONCLUSION


TABLE OF AUTHORITIES

Opinions of International Courts:

The Effect of Reservations on the Entry into Force of the American Convention of Human Rights (Arts. 74 and 75), Advisory Opinion No. OC-2/82 of Sept. 24, 1982, Inter American Court of Human Rights, ser. A: Judgment and Opinions, No. 2 (1982).

The Effect of Reservations on the Entry into Force of the American Convention of Human Rights (Arts. 74 and 75), Advisory Opinion No. OC-2/82 of Sept. 24, 1982, Inter American Court of Human Rights, ser.B: Pleadings, Oral Arguments and Documents, No. 2 at 54 (1982).

Habeas Corpus In Emergency Situations (Arts. 27(2), 25(1), and 7(6) American Convention of Human Rights) Advisory Opinion No. OC-8/87 of Jan. 30, 1987, Inter American Court of Human Rights, ser. B: Pleadings, Oral Arguments and Documents, No. 8 (1987).

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16.

"Other Treaties: Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention of Human Rights), Advisory Opinion No. OC-1/82 of Sept. 24, 1982, Inter American Convention on Human Rights, ser. A: Judgment and Opinions, No. 1 (1982)

"Other Treaties: Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention of Human Rights), Advisory Opinion No. OC-1/82 of Sept. 24, 1982, Inter American Convention on Human Rights, ser. B: Pleadings, Oral Arguments and Documents, No. 1 at 85 (1982).

Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Art. 64 American Convention on Human Rights), Advisory Opinion No. OC-4/84 of Jan. 19, 1984, Inter American Court of Human Rights, ser. B: Pleadings, Oral Arguments and Documents, No. 4 (1984).

Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention of Human Rights), Advisory Opinion, No. OC-3/83 of Sept. 8, 1983, Inter American Court of Human Rights, ser. A: Judgment and Opinions, No. 3 (1983).

Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention of Human Rights), Advisory Opinion, No. OC-3/83 of Sept. 8, 1983, Inter American Court of Human Rights, ser. B: Pleadings, Oral Arguments and Documents, No. 3 at 82 (1983).

International Agreements:

American Convention of Human Rights, O.A.T.S. No. 1 at 1, O.A.S.O.R., OEA/Ser. IL/XVI/1.1, doc. 65, rev. 1 Corr. 2 (1970).

Charter of the Organization of American States, 2 U.S.T. 2394, T.I.A.S No. 2361, 119 U.N.T.S. 48, entered into force Dec. 13, 1951, as amended by the Protocol of Buenos Aires, T.I.A.S. No. 6847, O.A.S.T.S. No. 1-A, O.A.S.O.R. OEA/Ser. /2, Add.2. entered into force Feb. 27, 1970.

Statute of the Inter American Commission of Human Rights, Basic Documents Pertaining to Human Rights in the Inter American System (1988).

International Resolutions:

American Declaration on the Rights and Duties of Man, Bogota, Colombia, 1948, reproduced in Handbook of Existing Rules Pertaining to Human Rights, O.A.S. Doc. OEA/Ser.L/V/II 60/doc. 28/ rev. 1.

Proclamation of Teheran, 23 U.N. GAOR, U.N. Doc A/Conf. 32/41 (1968).

Resolution of the Inter American Commission of Human Rights, Case No. 9647 (United States) Res. 3/87.

Resolution of the Inter American Commission, Case No. 2141 (United States) Res. 23/81 (March 6, 1981).

Resolution of the Inter American Commission, Case No. 4326 (Argentina Res. 50/82 (June 24, 1982).

Resolution of the Inter American Commission, Case No. 7970 (Argentina Res. 29/83 (October 4, 1984).

Resolution of the United National General Assembly, Res. 2442 (XXIII), 23 GAOR suppl. No. 18 (A/7218).

Resolution XXX, Final Act of the Ninth International Conference of American States, Bogota, Columbia, March 30-May 2, 1948 (Pan-American Union 1948), reprinted in 2 T. Buergenthal & r. Norris, Human Rights: The Inter American System, Booklet 5 (1982), and 1 OAS General Secretariat, The Inter American System; Treaties, Conventions & Other Documents, pt. 2, at 5 (F.V. Garcia-Amador ed. 1983).

Second Special Inter American Conference, Rio de Janeiro, Res. XXII.

Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

Books and Journals:

Buergenthal, The Advisory Practice of the Inter American Human Rights Court, 79 Am. J. Int'l L. 1 (1985).

Buergenthal, The Inter American Court of Human Rights, 76 Am. J. Int'l L. 231 (1982).

Buergenthal, The Revised OAS Charter and the Protection of Human Rights, 69 Am. J. Int'l L. 828 (1975).

Montreal Statement of the Assembly for Human Rights, 9 J. Int'l Comm'n Jurists 94 (1968).

Schwelb, The Influence of the Universal Declaration of Human Rights on International and National Law 1959 Am. soc. Int'l L. Proc. 217, reprinted in R. Lillich and F. Newman International Human Rights: Problems of Law and Policy (1979)

United States Court Opinions:

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Miscellaneous:

Restatement (Third) of United States Foreign Relations Law. Part VII, Introductory Note (Tent. Draft No. 6).


 

I. INTEREST OF AMICUS CURIAE

The International Human Rights Law Group ("the Law Group") is a non-profit legal organization that seeks to promote the observance of international human rights norms. Founded in 1978, the Law Group provides legal assistance and information in the field of international human rights law. With the assistance of attorney who contribute their services to the Law Group, this expertise in international law and human rights is offered on a pro bono basis to individuals and groups concerned with respect for human rights.

The Law Group has filed numerous submissions with international and regional intergovernmental bodies concerned with the protection of human rights and fundamental freedoms, without regard to the particular political, economic, or geographic context in which violations may take place. The Law Group has also filed amicus curiae briefs before the Inter American Court of Human Rights [1].

The Law Group believes that Article 64 of the American Convention on Human Rights ("the American Convention") provides the Inter American Court of Human Rights ("the Court") with advisory jurisdiction to interpret the American Declaration of the Rights and Duties of Man ("the American Declaration"). It is essential to the proper functioning of the inter-American system of human rights protections that OAS member states, all of which are bound by the human rights standards expressed in the American Declaration know with some certainty what those standards are. The Law Group further believes that the legal status of the American Declaration has changed over the years since it was adopted and that it contains norms that are now binding on all OAS member states by virtue of its status as customary international law. For the reasons expressed below, the Law Group urges the Court to find both that it has advisory jurisdiction over the interpretation of the American Declaration and that the American Declaration contains norms that are binding under customary international law.

II. QUESTIONS PRESENTED

The Government of Colombia has requested an advisory opinion from the Court concerning the interpretation of Article 64(1) of the American Convention as it pertains to the jurisdiction of the Court to interpret certain human rights instruments. Article 64(1) provides, in relevant 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 [2]

The focus of this request is the American Declaration. Specifically, the Government of Colombia is seeking answers to two separate questions: 1) Does Article 64(1) authorize the Court to render an advisory opinion which interprets the American Declaration?; and 2) What is the current normative status of the American Declaration in the framework of the inter-American system of human rights protections? The Law Group's brief will address both of these questions.

III. ARGUMENTS

 

A. THE AMERICAN CONVENTION ON HUMAN RIGHTS AUTHORIZES THE COURT TO INTERPRET THE AMERICAN DECLARATION.

Article 64(1) of the American Convention [3] authorizes the Court to issue an advisory opinion interpreting the American Declaration. Although this authorization may not be apparent upon a superficial reading of Article 64(1), closer examination of the relationship between certain articles of the American Convention, the American Declaration, and the Statutes of both the Commission and the Court reveals that a proper understanding of these instruments requires that the Court have the authority to render an advisory opinion interpreting the American Declaration.

First, it is not disputed that the Court has jurisdiction to interpret the American Convention. Article 29 of the Convention states that:

 

No provision of this Convention shall be interpreted as:

* * *

 

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. [4]

To properly interpret the American Convention in accord with article 29(d), therefore, the Court must necessarily interpret the American Declaration. Article 29(d) clearly prohibits the Court from interpreting the American Convention in such a way that would limit or restrict the effect of the American Declaration. Any interpretation by the Court of the American Convention, therefore, must pass the "test" of Article 29(d). and the Court could not apply this test without first interpreting the American Declaration. As Justice Buergenthal has pointed out, "[t]o the extent that the Court, in applying Article 29, may be called upon to interpret the American Declaration, it has the power to do so under Article 64(1); it would merely be interpreting the Convention". [5]

Second, Article 64(1) can be interpreted as directly authorizing the Court to interpret the American Declaration, because the Declaration has acquired, over the forty years since its adoption, the character of a treaty. Courts have shown a willingness in the past to treat international instruments as if they were treaties once such documents had acquired the character of treaty. In the context of determining the scope of its jurisdiction, the Court should interpret its Article 64(1) advisory jurisdiction broadly to include not only instruments that satisfy the technical requirements of a "treaty", but also those instruments, such as the American Declaration, that have acquired the character of a treaty.

These arguments are strengthened by the fact that "[t]he Court has interpreted its advisory jurisdiction broadly...." [6] In its Other Treaties advisory opinion [7], the Court stated that "the preparatory work of the Convention indicates that this treaty sought to define the advisory jurisdiction in the broadest terms possible" [8]. The Court recognized that, when determining the scope of its advisory jurisdiction, it must keep in mind the purposes of the Convention. The advisory jurisdiction of the Court is closely related to the purposes of the Convention. This jurisdiction is intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the inter-American system to carry out the functions assigned to them in this field. Within this framework, "the Court has sought to avoid burdening the advisory process with formalistic and time-consuming obstacles" [9].

As the Court itself has recognized, human rights treaties are quite different from the traditional multilateral model of contractual rights and duties in which strict textual construction is the rule.

 

[M]odern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States [10].

Thus, it is appropriate in this case for the Court to interpret its advisory jurisdiction broadly, as it has done in the past, in order to further the unique purpose of the American Convention.

In its Proposed Amendments advisory opinion [11], the Court demonstrated its willingness to interpret creatively and broadly its jurisdiction under Article 64 when this was necessary to fulfill the purpose of the Convention. In that case, the Government of Costa Rica requested an advisory opinion from the Court under Article 64(2), asking the Court to determine whether certain proposals to amend the Costa Rican Constitution were compatible with the American Convention. A literal construction of Article 64(2) would have prohibited the Court from exercising its advisory jurisdiction in that case, since a proposed constitutional amendment is not, technically, a "domestic law". Nonetheless, the Court ruled the request admissible, noting that to deny the request would subvert the very purpose of the Court --to assist OAS member states and organs in complying with their international human rights obligations-- and would clearly not give effect to the objectives of the Convention; namely, the protection of the individual's basic human rights and freedoms [12].

 

1. ARTICLE 29 OF THE AMERICAN CONVENTION IMPLICITLY REQUIRES THAT THE COURT HAVE JURISDICTION TO INTERPRET THE AMERICAN DECLARATION.

Article 29 of the American Convention may be seen as a restriction upon the possible interpretations that can be given by the Court of the provisions of the Convention. Article 29(d) prohibits any interpretation of the Convention that "excludes or limits the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have" [13]. It is hardly controversial to state that, to insure that a particular interpretation of the American Convention does not exclude or limit the effect of the American Declaration, the interpreting body --be it the Court or the Commission-- must first engage in an interpretation of the American Declaration itself.

Thus, suppose a certain member State requested an advisory opinion from the Court as to whether or not a particular interpretation of the Convention was acceptable. Suppose further that a second member State, one which objects to the proposed interpretation, asks the Court to find that such an interpretation would violate Article 29(d) of the Convention, because it would limit the effect of certain provisions of the American Declaration. In order to properly rule on this request, the Court must, of necessity, engage in an interpretation of the American Declaration.

Article 29, therefore, is implicated whenever the Court is asked to interpret any provision of the American Convention. Proper application of Article 29(d) will always require a two-step process. First, the Court must interpret the rights and duties contained in the American Declaration. Then, and only then, may the Court proceed to interpret the American Convention in such a way as to avoid limiting or excluding those rights and duties. Thus, if the Court were to rule in the case before it that it has no advisory jurisdiction to interpret the American Declaration, it would be abdicating its responsibilities under Article 29(d).

Since a member state could obtain from the Court an interpretation of the American Declaration by couching its request in terms of the Convention, it would seem unduly formalistic to prohibit states from obtaining such guidance from the Court directly via a straighforward request for an advisory opinion interpreting the American Declaration. The Court has repeatedly recognized that it should interpret the scope of its advisory jurisdiction broadly [14] in view of its purpose to assist states in understanding and observing their human rights obligations.

 

2. THE AMERICAN DECLARATION HAS ACQUIRED THE CHARACTER OF A TREATY AND THUS SHOULD BE INCLUDED WITHIN THE SCOPE OF THE COURT'S "OTHER TREATIES" JURISDICTION UNDER ARTICLE 64(1) OF THE AMERICAN CONVENTION.

In the South West Africa case [15], the International Court of Justice ("the ICJ") concluded that it would treat a certain instrument as if it were a treaty, notwithstanding the fact that the instrument was adopted merely as a resolution. The ICJ reasoned that, because the instrument had developed the "character of a treaty", it should be treated by the Court as if it had actually been adopted in treaty form. The ICJ based its decision in part on the fact that the instrument in question contained provisions of the type found in formal treaties. It was clearly important to the ICJ's opinion that the instrument was regarded by those "party" to it as containing binding obligations against which their conduct could be judged.

Similarly, the practice of the Commission indicates a willingness to treat the American Declaration as if it were a treaty. For example, in Case No. 9647 [16], the Commission determined that the United States had "violated" Articles I and II of the American Declaration. By making this determination, the Commission attached legal significance to these provisions guaranteeing such rights as life, liberty, security of person, and equality before the law.

Likewise, in Case No. 2141 [17], the Commission found that the United States had violated its obligations under the American Declaration. In reaching its decision, the Commission found that:

 

[a]s a consequence of Articles 3j, 16, 51e, 112 and 150 of [the OAS Charter], the provisions of other instruments and resolutions of the OAS on human rights have binding force. These instruments and resolutions ... are the following:

 

- American Declaration of the Rights and Duties of Man (Bogota 1948)

- Statute and Regulations of the IACHR 1960, as amended by Resolution XXII of The Second Special Inter American Conference (Rio de Janeiro, 1965)

- Statute and Regulations of IACHR of 1979-1980 [18].

The idea that international legal instruments may have an evolving character, e.g., from resolution to treaty, is particularly appropriate in the context of human rights instruments. As has been noted above, since the focus of such instruments is a compelling one --namely, the basic rights to which one is entitled as a human being-- it is reasonable to allow for a certain amount of flexibility in their interpretation. Therefore, the Court should conclude in this case that, because the American Declaration has acquired the character of a treaty, it falls within the scope of the Court's Article 64(1) advisory jurisdiction.

 

B. THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN CREATES NORMS THAT ARE BINDING ON ALL OAS MEMBER STATES.

Should the Court determine that Article 64(1) of the Convention does not vest the Court with jurisdiction to interpret the Declaration pursuant to an advisory opinion, amicus respectfully submits that the Court nevertheless may provide an advisory opinion on the normative status of the Declaration. A decision on the normative character of the Declaration would not require the Court to interpret any particular language of the Declaration itself. Rather, it would simply involve the Court in an interpretation of the OAS Charter and the Convention, for the purpose of establishing the current role of the Declaration within the inter-American human rights system. This need not involve the Court in interpreting the content of any of the rights established in the Declaration. The Court's authority to interpret the OAS Charter and the American Convention is unambiguous under the terms of Article 64 of the Convention. According to its explicit terms, Article 64(1) provides that the Court is authorized to issue an advisory opinion interpreting the Convention and "other treaties concerning the protection of human rights in the American States" [19].

 

1. THE NORMATIVE STATUS OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS IS NOT NECESSARILY STATIC, BUT CAN CHANGE OVER TIME

The American Declaration of the Rights and Duties of Man was adopted in 1948 at the Ninth International Conference of American States in Bogota, Colombia. At the time it was adopted, it was in the form of an inter-American conference resolution [20]. As such, it originally did not have binding force on any of the states which voted to adopt it. Instead, it was purely hortatory in character, providing norms to which states would agree to aspire in their treatment of human beings.

since 1948, however, the normative status of the American Declaration, under international law, has been changing:

It is generally recognized... that the Protocol of Buenos Aires, which amended the OAS Charter, changed the legal status of the Declaration to an instrument that, at the very least, constitutes an authoritative interpretation and definition of the human rights obligations binding on OAS member states under the Charter of the Organization [21].

Thus, although the Declaration was at its inception no more than a collection of aspirations, today it is an integral part of the entire inter-American system of human rights protection.

International law is often evolutionary in nature. The changing customs and standards of the international community will affect the legal status of a particular document within international law. Thus, even though an instrument of international law may lack the formal status of a treaty, it nonetheless may become an instrument that binds states because of its status as customary international law. International declarations, statements, and resolutions may become binding as customary international law where uniform and widespread state practice is accompanied by opinio juris, or a sense of legal obligation. The reasoning behind this process is that states may become bound by certain documents, or norms expressed in those documents, when they act in such a way as to indicate that they consider themselves and others bound by these documents or norms. In other words, the rule which may be abstracted from the conduct is viewed as evidence of customary international law.

 

2. THE EVOLUTION OF THE NORMATIVE STATUS OF THE AMERICAN DECLARATION IS SIMILAR TO THAT OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS.

The Universal Declaration of Human Rights, adopted in 1948, exemplifies the evolving nature of international law and the creation of customary international norms and laws. At the time of its adoption, the Universal Declaration was intended to consist of non-binding principles with which states should aspire to comply. However, as has been the case with the American Declaration, subsequent developments in international law have changed the normative status of the Universal Declaration. As the customary international law of human rights developed through state practice and opinio juris, the aspirational provisions of the Universal Declaration were reflected in the newly developed binding norms. Today the Universal Declaration is widely acknowledged as reflecting binding norms of international legal obligation [22].

That the Universal Declaration is declaratory of customary international law was unambiguously recognized in the seminal case of Filartiga v. Pena-Irala [23]. In Filartiga, the U.S. Court of Appeals recognized that, "[s]everal commentators have concluded that the Universal Declaration has become, in toto, a part of binding customary international law" [24]. Quoting Egon Schwelb, the Court explained that the Universal Declaration "no longer fits into the dichotomy of 'binding treaty' against 'non-binding pronouncement' but is rather an authoritative statement of the international community" [25].

The Universal Declaration and the American Declaration share a number of similarities. The American Declaration was adopted seven months earlier than the Universal Declaration. The majority of the concepts incorporated into the Universal Declaration are also found in the American Declaration; many articles in both documents are nearly identical [26]. At the very least, therefore, the substantive rights enumerated in the American Declaration that are identical to rights included in the Universal Declaration are binding as a consequence of their independent status as customary international law.

 

3. THE PRACTICE OF THE INTER AMERICAN COMMISSION, THE PRACTICE OF MEMBER STATES, AND THE PROTOCOL OF BUENOS AIRES INDICATE THAT THE AMERICAN DECLARATION CONTAINS NORMS THAT ARE NOW BINDING ON ALL MEMBER STATES AS CUSTOMARY INTERNATIONAL LAW.

Just as the normative status of the Universal Declaration has changed from that of a standard of achievement to that of a legally binding document, the status of the American Declaration within the inter-American system has changed so as to create norms binding on member states of the OAS. The evolution described above is supported by 1) the practice of the Inter American Commission on Human Rights, 2) the practice of Member states, and 3) the Protocol of Buenos Aires.

 

a. Practice of the Commission

The Inter American Commission on Human Rights has dealt with the American Declaration in several of its opinions [27]. The Commission's conclusions in these cases reveal its belief that the Declaration now is considered to be a normative codification of customary law with which all OAS member states are expected to comply. Deviations by member states from the human rights standards set forth in the American Declaration are sufficient to warrant an investigation of the human rights practices in those states. For example, in Case No. 9647, cited above [28], the Commission found that the United States Government, by executing the two juvenile offenders, had violated Articles I and II of the American Declaration [29]. The very fact that the Commission views the Declaration as a document containing norms against which a state's conduct can be measured and that a state can be found to have violated the protections set forth in the Declaration clearly indicates the change in the legal status of this document. If the Declaration had remained nothing more than an expression of the aspirations of the OAS member states, it would have been inappropriate for the Commission to conclude that a state had "violated" the norms contained in that document [30].

The Commission also has demonstrated its views on the normative status of the American Declaration by the adoption of its Statute. The Statute of the Commission states that "for the purpose of this Statute, human rights are understood to be those set forth in the American Declaration" [31].

 

b. Practice of Member States

The practice of OAS member states since the adoption of the Declaration in 1948 also indicates that the legal status of that document has evolved over time from an expression of goals to an expression of expectations that is a focal point for the entire inter-American system of human rights protections. For example, at the Second Special Inter-American Conference held in Rio de Janeiro in 1965, member states specifically requested the Commission to "give particular attention... to [the] observance of the human rights referred to in articles I-IV and XXV-XXVII of [the American Declaration]" [32].

Moreover, through the General Assembly, member states have approved the Commission's Statute and the references to the American Declaration contained therein, thus confirming the normative status of the Declaration as an instrument giving special meaning to the vague human rights provisions of the OAS Charter.

 

c. The Protocol of Buenos Aires and the Statute of the Commission

Lastly, the Protocol of Buenos Aires, which revised the OAS Charter, "significantly strengthened the normative character" of the American Declaration by transforming the legal status of the Commission and its Statute [33]. The Commission changed from an autonomous entity without any constitutional legitimacy to a principal organ of the OAS. Subsequently, the Statute of the Commission, and therefore the American Declaration referred to therein, became an integral component of the OAS Charter. By incorporating the American Declaration into the Charter, the Commission has been "empowered by the OAS Charter to judge the conduct of its member states by holding them to standards articulated in the American Declaration" [34]. The American Declaration can therefore be deemed to derive its normative character from the OAS Charter itself.

Article 51 of the revised OAS Charter designates the "Inter American Commission on Human Rights" as one of the principal organs of the OAS. The functions of the Commission are set out in Article 112 of the revised Charter as follows:

 

There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the organization in these matters.

An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters [35].

Article 150 of this same document provides that "until the Inter-American Convention on Human Rights ... enters into force, the present Inter American Commission on Human Rights shall keep vigilance over the observance of human rights" [36]. Article 2 of the Statute of the Commission, which pre-dates the revised Charter, states that, "[f]or 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" [37]. Taken together, Articles 51, 112 and 150 of the revised Charter and Article 2 of the Statute of the Commission lead to the conclusion that "the human rights provisions of the American Declaration can today consequently be deemed to derive their normative character from the OAS Charter itself" [38].

CONCLUSION

For the foregoing reasons, amicus curiae, the International Human Rights Law Group, urges the court to find: 1) that article 64(1) of the American Convention authorizes the Court to render an advisory opinion interpreting the American Declaration; and 2) that the American Declaration creates norms that are binding on all OAS member states.

(s)D. LEA BROWNING, ESQ.
Acting Legal Director,
International Human Rights Law Group
1601 Connecticut Avenue, N.W.
Suite 700
Washington, D.C. 20009
202/232-8500
Attorney for Amicus Curiae

Of Counsel:
Professor Claudio Grossman
American University
Washington College of Law

Amy Young, Esq.
Executive Director
International Human Rights Law Group

December 2, 1988

9608M/2985o


Footnotes

[1] See, e.g., "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), advisory Opinion OC-1/82 of September 24, 1982, Ser. A., No. 1; The Effect of Reservations on the entry into force of the American Convention on Human rights (Arts. 74 and 75) Advisory Opinion OC-2/82 of September 24, 1982, Ser. A, No.2; Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion, OC-3/83 of September 8, 1983, ser. A, No. 3; and Habeas Corpus In Emergency Situations (Arts. 27(2), 25(1), and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of January 30, 1987, Ser. A No.8.

[2] American Convention on Human Rights, O.A.T.S. No.6, at 1. O.A.S.O.R., OEA/Ser. K/XVI/1.1, doc. 65, rev. 1, Corr. 2 (1970).

[3] Id

[4] Id.

[5] T. Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Int'l L. 1, 8 (1985).

[6] Id. at 25.

[7] I/A Court H.R. "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82 of September 24, 1982 Series A/No.1.

[8] Id. at para. 17.

[9] T. Buergenthal, supra note 5 at 25.

[10] I/A Court H.F., The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75 American Convention on Human Rights) Advisory Opinion OC-2/82 of September 24, 1982 Series A/No.2.

[11] I/A Court H.R., Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Art. 64 American Convention on Human Rights) Advisory Opinion OC-4/84 of January 19, 1984 Series B/No.4.

[12] Id. at 21, 22, and 26.

[13] American Convention on Human Rights, Art. 29(d) supra note 2.

[14] T. Buergenthal, The Inter American Court of Human Rights, 76 Am. J. Int'l L. 231, 243 (1982).

[15] Legal Consequences for States of the Continued Presence of South Africa in Namibia (south West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16.

[16] The Inter American Commission on Human Rights, Case No. 9647 (United States) Res. 3/87. The case concerned two juvenile offenders sentenced to death and executed in the United States for crimes perpetrated prior to their eighteenth birthdays.

[17] The Inter American Commission on Human Rights, Case No. 2141 (United States) Res. 23/81 of March 6, 1981. The case concerned decisions of the U.S. Supreme Court and the Supreme Court of Massachusetts regarding a woman's right to an abortion.

[18] Id. at para. 16 (emphasis added).

[19] American Convention on Human Rights, Art. 64(1), supra note 2.

[20] Res. XXX, Final Act of the Ninth International Conference of American States, Bogota, Colombia, March 30-May 2, 1948, at 38 (Pan American Union 1948), reprinted in 2 T. Buergenthal & R. Norris, Human Rights: The Inter-American System, Booklet 5 at 1 (1982), and 1 OAS General Secretariat, The Inter-American System: Treaties, Conventions & Other Documents, pt. 2, at 5 (F.V. García-Amador ed. 1983).

[21] T. Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Int'l L.1, 7 (1985) (emphasis added).

[22] See Montreal Statement of the Assembly for Human Rights, 9 J. Int'l Comm'n Jurists 94, 94-95 (1968); the "Universal Declaration... has over the years become a part of customary international law;"Proclamation of Teheran, 23 U.N. GAOR, U.N. Doc. A/Conf. 32/41 (1968), which was endorsed by the UN General Assembly, GA Res. 2442 (XXIII), 19 December 1968; 23 GAOR, suppl. No. 18 (A/7218), at 49. See also E. Scwelb, Human Rights and the International Community 70 (1964).

The American Law Institute's Restatement of Foreign Relations Law of the United States (Revised), which represents the views of leading international law experts in the United States, concludes that certain human rights are part of customary international law. Restatement pt. VII introductory note at 449 (Tent. Draft No. 6) (Protection of persons - natural and juridical) sec.

[23] Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cr. 1980).

[24] Id.

[25] See E. Schwelb, The Influence of the Universal Declaration of Human Rights on International and National Law, 1959 Am. Soc. Int'l L. Proc. 217, reprinted in R. Lillich & F. Newman, International Human Rights: Problems of Law and Policy (1979).

In reaching its decision, the Court relied heavily on the amicus brief of the U.S. Departments of State and Justice. See Government Filartiga Memorandum, reprinted in 19 I.L.M. 58. The brief stated that the evolutionary process of customary international law "has produced wide recognition that certain fundamental human rights are now guaranteed to individuals as a matter of customary international law".

[26] See, e.g., American Declaration Arts. I, II, III, IV and V and Universal Declaration Arts. 3, 7, 18, 19 and 12 respectively. The principal difference between the two instruments is that the American Declaration enumerates duties as well as rights, whereas the Universal Declaration prescribes only general "duties to the community in which the rights and freedoms set forth in this Declaration can be fully realized".

[27] See supra notes 16,7; infra note 30.

[28] See supra note 16.

[29] Articles I and II of the Declaration guarantee life, liberty, security of person, and equal treatment before the law.

[30] Examples of other cases where the Commission has used the American Declaration as a binding norm are: 1) Case No. 4326 (Argentina) June 24, 1982 concerning an "unlawful detention" that was in violation of Articles I and XXV of the American Declaration; and 2) Case No. 7970 (Argentina) October 4, 1984 concerning irregular circumstances (in which a person died) that was in violation of Articles I and XXV of the American Declaration.

[31] Article 2, Statute of the Inter American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter American System, 1988.

[32] Resolution XXII.

[33] T. Buergenthal, The Revised OAS Charter and the Protection of Human Rights, 69 Am. J. Int'l L. 828, 835 (1975).

[34] Id.

[35] Charter of the Organization of American States, 2 U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N.T.S. 48, entered into force Dec, 13, 1951, as amended by the Protocol of Buenos Aires, T.I.A.S. No. 6847, O.A.S.T.S. No. 1-A, O.A.S.O.R. OEA/Ser. A/2, Add. 2, entered into force Feb. 27, 1970.

[36] Id.

[37] Statute of the Inter American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter American System, 1988.

[38] T. Buergenthal, supra note 33 at 835.


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