Don’t Leave Me This Way: Regulating Treaty Withdrawal in the Inter-American Human Rights System

What happens after a state party denounces a human rights treaty? Which legal obligations continue and how should other member states react? On December 16, 2020, the Inter-American Court of Human Rights (IACtHR) addressed those central questions in a much-anticipated advisory opinion on the procedure for and effects of withdrawal from the American Convention on Human Rights (ACHR) and the Charter of the Organization of American States (OAS) (available in Spanish here, discussions in Spanish here and here)

Besides affirming core rules on treaty termination, the IACtHR developed three insightful but highly controversial elements in its approach to state withdrawal: First, the Court states that the decision to withdraw must follow a specific domestic procedure. Secondly, it requires that state authorities have to take the decision to withdraw in good faith. Ultimately, it connects the debate on treaty termination to the concept of a collective guarantee in the Inter-American human rights system which provides guidelines for institutional bodies and other member states in a situation of state withdrawal.

Withdrawing from the Inter-American Human Rights Regime

The study of treaty withdrawal is not short of empirical examples in recent years. With Brexit and the various withdrawals of the Trump administration dominating the legal discourse, the unilateral exit of state parties has ignited renewed interest in the rules on treaty termination. While state withdrawal is not a new phenomenon for human rights regimes, instances of withdrawal have risen both in quantity and quality in recent years. The most worrisome recent example is the African human rights regime, which faces a very insecure future after several states have withdrawn their declaration to the optional protocol to the African Court on Human and Peoples’ Rights (ACtHPR) (see here, here, here). In the words of Larry Helfer, we have moved away from the marriage and now focus on divorce.

The Inter-American human rights regime has special relevance for the discussion of state withdrawal. In the course of the last two decades, it acquired significant experience in dealing with states threatening to withdraw. Moreover, the IACtHR has addressed the ensuing problems also in its jurisprudence (see Ivcher Bronstein v. Peru), which was relied on by the ACtHPR in its decision on the Rwandan withdrawal in 2016. Most importantly, Venezuela had been the first state to not only denounce the ACHR in 2012, thus leaving the jurisdiction of the IACtHR, but also notified the OAS of its intention to withdraw from the institutional framework altogether in 2017. Yet, a few days before the Venezuelan withdrawal would have taken effect, the OAS Permanent Council recognized the Guaido government as the legitimate representative of Venezuela, which does not want to leave the OAS. This led to a very complicated situation, also for the Inter-American human rights bodies. While the OAS still considers Venezuela a state party, the Inter-American Commission of Human Rights has been denied entry to the state by the Maduro government. Moreover, there is also an institutional split; while the OAS lists a 2019 ACHR ratification by Venezuela, the Court stated in its recent case of Mota Abarullo et al. v. Venezuela that the Venezuelan withdrawal of the ACHR went into effect in 2013 and thus Venezuela is no longer a state party.

Advisory Opinion OC-26/20

In the context of the Venezuelan withdrawal, the Republic of Colombia submitted three sets of questions to the IACtHR on 6 May 6 2019, which have been slightly re-formulated by the Court to focus on the Inter-American human rights system and exclude matters of general international law:

• What are the remaining international human rights obligations for an Organization of American States member state that has denounced the American Convention on Human Rights?
• If a State that is not a party to the American Convention denounces the Charter of the Organization of American States, what are the effects that such denunciation and withdrawal have on the international human rights obligations referred to in the first question?
• What international human rights obligations do the member states of the Organization of American States have towards the States of the Americas that have denounced the American Convention on Human Rights and the Charter of the Organization of American States?

Those questions were discussed in 57 written observations by legal scholars. Over three days in June 2020, the Court held virtual hearings with 30 individuals representing state parties, the Inter-American Commission, academic institutions, and civil society groups. Crucially, the admissibility of the request for an advisory opinion was challenged on several grounds, with the most pressing concern being the clear connection to the Venezuelan case which would defy the rules of the advisory function of the Court (see also the dissenting opinion of Judge Zaffaroni). However, the Court rebutted this argument by stating that it aims to “clarify and specify the scope of the clauses authorizing the denunciation of both treaties and their effect on human rights obligations, in order to contribute to the fullest and most effective protection of human beings within the framework of the inter-American system.” (para. 32, my translation) 

In its advisory opinion, the Court, for the most part, followed the rules of general international law, in particular the law of treaties, by interpreting Art. 78 ACHR and Art. 143 OAS Statute. It reaffirmed the transition period of one and two years respectively for the denunciation to take effect, the non-retroactivity of the denunciation, and the bindingness of custom, general principles of international law, and jus cogens. However, it also pointed out specifics of the Inter-American system, such as a broader regional conceptualization of jus cogens, the crucial role of the American Declaration of the Rights and Duties of Man, the continued supervision of the Inter-American Commission for OAS state parties, and the lack of withdrawal options in the two Additional Protocols to the ACHR on ESC rights (“Protocol of San Salvador”) and the Abolition of the Death Penalty.

A Pro-Active Approach to State Withdrawal

Yet, the advisory opinion is also characteristic of the IACtHR’s jurisprudential approach, which usually divides its audience. In the words of Ximena Soley: “its champions tend to call it bold, whereas its critics call it activist.” The Court emphasises that the “denunciation of a human rights treaty, such as the American Convention, represents a regression in the level of inter-American protection of human rights and in the pursuit of the much talked about universalization of the inter-American system”. Throughout the opinion, it highlights the consequences of the withdrawal for the individual; “the holders of the rights recognized in the American Convention, who would be left without inter-American judicial protection, are in an asymmetrical position with respect to the power of the State” (para. 58, my translation).

This focus led the IACtHR to stretch the limits of its interpretative approach in three aspects in particular: First, the Court creates a new procedural requirement for withdrawal decisions. While the Court acknowledged that the ACHR is silent on specific domestic procedures required for withdrawal and there is no uniformity among state parties, it holds that the decision to withdraw “must be the object of a plural, public and transparent debate within the States, since it is a question of a high public interest, inasmuch as it entails a possible curtailment of rights and, in turn, access to international justice.” (para. 63, my translation)

Secondly, the Court argues that the decision to withdraw must have been taken in “good faith” and not to undermine human rights or standards of representative democracy. While it does not discuss what would constitute withdrawal in “bad faith”, it specifically points to six situations in which higher scrutiny should be exercised:

“It is essential to investigate the good faith of the State in connection with the purpose and context in which the complaint is made and verified, paying special attention to situations in which the complaint occurs:

(1) due to a disagreement with a decision adopted by the protection body and motivated by a manifest desire to violate the international commitments adopted therein;

(2) in the event of a situation in which guarantees are suspended indefinitely or which violates the non-derogable core of rights;

(3) in a context of serious, massive or systematic violations of human rights;

(4) in the context of the progressive erosion of democratic institutions;

(5) in the event of a manifest, irregular or unconstitutional alteration or breakdown of the democratic order, and/or

(6) during the occurrence of an armed conflict, as all these situations are particularly serious and can affect democratic stability, security and peace in the hemisphere, with the consequent generalised effect on human rights.” (para 72, my translation).

Thirdly, the Court develops the idea of a “collective guarantee” underlying the Inter-American human rights system. This concept is at the core of the advisory opinion, “[i]n this way, the Court intends to help the community of American States and the competent organs of the OAS to collectively ensure that the effectiveness of the American Convention and of the inter-American system for the protection of human rights itself is peacefully being maintained” (para 58, my translation). The Court derives from the concept of the collective guarantee specific obligations for the political bodies of the OAS and member states, for instance, to engage in institutional and diplomatic activities to address possible denunciations early and collectively (para. 170). Moreover, state parties should insist on the full compliance with human rights obligations of the denouncing state, including those under custom, jus cogens, and general principles, as well as decisions of the IACtHR lodged during the transition period. They should cooperate to eradicate impunity and to provide international protection including admitting potential asylum seeker (para. 173). The latter most probably refers indirectly to the massive humanitarian crisis affecting Venezuelan refugees and migrants in recent years. Most importantly, the member states should scrutinise the context of the withdrawal decision in the light of the new procedural requirements for domestic debate and good faith. However, the Court neither concretises the standards nor the procedure on how this scrutiny should be exercised.

50 Ways to (Not) Leave the Inter-American Human Rights System

The reasoning of the Court in those three aspects is certain to raise significant criticism. Strongly motivated by the core concern to protect the human rights of the individual in the context of rising authoritarianism, the Court establishes new procedural hurdles for a state’s sovereign decision to withdraw from a treaty. In particular, it leaves open the mode and possible consequences of the review of the withdrawal. What will happen when member states object to a withdrawal due to lack of domestic debate? Should the objection take place bilaterally or discussed in public? Which majorities are required to pass a decision on the objection? Can, and should, they then block the exit? Is there a possibility of the denouncing state to object to the decision?

Those are certainly not abstract questions as Venezuela’s withdrawal falls under at least two of the six mentioned situations, namely massive and systematic violations of human rights and breakdown of the democratic order. In his partly dissenting opinion, Judge Pazmiño proposes that an advisory opinion of the IACtHR requested by the Secretary General on the standards of democracy, human rights, and the inter-American public order in a specific case could serve as the final arbitrator to investigate the requirements in case a state party questions the good faith of a denouncing state. However, it is doubtful whether this exercise of “Kompetenz-Kompetenz” would facilitate a harmonious relationship between the Court and the leaving state which still has an obligation to comply with decisions launched prior to the effective withdrawal. Ultimately, the advisory opinion is very much in line with the spirit of the IACtHR to safeguard its transformative ambition by adopting a pro-active approach to treaty withdrawal. However, by doing so, the advisory opinion might be less effective in providing clarity to the existing withdrawal options and appeasing critical member states than the original request for the advisory opinion had desired.