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Home EJIL Analysis The Inter-American Court’s Advisory Function Continues to Boom – A few comments on the requests currently pending

The Inter-American Court’s Advisory Function Continues to Boom – A few comments on the requests currently pending

Published on November 25, 2019        Author: 
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Just on the same day that Evo Morales had asked the Bolivians to re-elect him for the fourth time as President, Colombia’s President Iván Duque apparently followed his words with deeds by filing a further request for an advisory opinion to the IACtHR. Already in his opening speech at the occasion of the Court’s last special session held in Colombia this summer, Duque had announced that his government was working on a request asking the Court to clarify whether or not a human right to be re-elected for indefinite terms exists. Then, on the day of the Bolivian elections, it was reported that the request had been submitted. An opinion by the Court contradicting that of the Bolivian Constitutional Court, according to which the possibility to be re-elected indefinitely constitutes a human right, could have destabilized a further Morales government. In light of the most recent events in Bolivia, including the resignation of Morales, the immediate reason for the request seems to be obsolete. But the issue of indefinite re-election remains topical. Not least, as also mentioned here, a Colombian State agent had indicated that the request was also relevant with regard to Nicaragua and Venezuela.

The request on re-election is already the third request currently pending before the Court, highlighting the continuing importance of the Court’s advisory function. Just a few weeks ago, the Court published a request filed by the Inter-American Commission on Human Rights (IACHR) regarding the guarantee of trade union freedom, its relationship to other rights, and its application from a gender perspective. The Commission’s request addresses a very important matter in times of a changing world of employment and also in light of the heavy protests in Ecuador and Chile which are basically rooted in the high rates of social inequality.

This post will focus on the first of the three pending requests, which submitted by Colombia in May. Not only is the May request politically sensitive, but it also raises some very interesting technical legal questions.

In its request of May, Colombia poses the following three questions to the Court:

  1. What obligations in matters of human rights does a member State of the Organization of American States have when it has denounced the American Convention on Human Rights?
  2. In the event that that State further denounces the Charter of the Organization of American States, and seeks to withdraw from that Organization, what effects do that denunciation and withdrawal have on the obligations referred to in the first question?
  3. When a situation of serious and systematic violations of human rights arises under the jurisdiction of a State in the Americas which has denounced the American Convention and the Charter of the OAS 1) What obligations do the remaining member States of the OAS have in matters of human rights? 2) What mechanisms do member States of the OAS have to enforce those obligations? 3) To what mechanisms of international protection of human rights can persons subject to the jurisdiction of the denouncing state take recourse?

At first, these questions first remind of the current situation in Venezuela, raising the question whether the Court should decline to answer the request as the advisory procedure might not be the adequate way how to deal with this case. The Court has established several criteria that may lead it to reject a request, among them are requests concealing a contentious case on a matter the Court might be confronted with in a subsequent contentious proceeding. Only recently, the Court rejected a request from the OAS General Secretary precisely because it feared it would otherwise make a premature pronouncement on an issue (the impeachment of Dilma Rousseff) that could subsequently be submitted to it in form of a contentious case. Also, the later request of the IACHR was mainly rejected because the Court held that by answering the request it would be required to determine the facts of a specific case. However, in other recent opinions rendered, the Court has loosened its criteria stating that the  questions did not constitute insurmountable limits, since it was for the Court to assess in each specific request the relevance of exercising its advisory function. Therefore, it rendered OC-25/18 requested by Ecuador although it was obviously related to the case of Julien Assange and it also gave OC-24/17 despite there being related complaints pending at the domestic level and before the IACHR. Furthermore, as also noted elsewhere, the Court has already proven, e.g. in OC-23/17, to be able to provide guidance in abstract legal terms despite the fact that the underlying request might have been politically motivated.

Putting aside thoughts as to the political backgrounds of the Colombian request, the first intuitive and very simple answer to the first two questions might be that such a state would of course continue to be bound by the human rights obligations arising under other international treaties it has ratified and furthermore, by all human rights obligations pertaining to customary international law or even to ius cogens. Should the Court reply to the request, it will be interesting to see how it will handle these incredibly far-reaching questions, especially how detailed it will elaborate on the existing human rights obligations under customary international law. This aspect is especially intriguing given that the Court’s jurisdiction ratione materiae under Article 64(1)ACHR although being very broad, actually does not encompass the competence to interpret customary international law. Since, in contrast to Article 96 UN Charter and Article 65 ICJ Statute allowing the ICJ to “give an advisory opinion on any legal question”, Article 64(1) authorizes the Court only to interpret the ACHR and other treaties concerning the protection of human rights in the American states.

One way to overcome this jurisdictional hurdle might be to argue that the Court’s competence to interpret the Convention and other human rights treaties necessarily entails the competence to interpret them in light of the existing customary international law as this forms part of the rules of international law applicable between the States parties in terms of Article 31(3) lit. c VCLT. In the OC-10/89, the Court followed a similar approach when it found that it was competent to interpret under its advisory jurisdiction the American Declaration of the Rights and Duties of Man although this was not a treaty as such. Another argument could be that the Court’s competence to interpret the Convention and other treaties comprises the competence to state which provisions of these treaties might constitute codified customary law and which of them might have emerged into customary international law since the treaties’ adoption. 

In any event, the request, in line with Article 70 (2) of the Court’s Rules of Procedure, names more than enough concrete provisions the Court is asked to, and should also be competent to, interpret. These comprise clauses of the preamble of the American Declaration of the Rights and Duties of Man, several articles of the OAS Charter and lastly, several articles of the ACHR itself.

A closer look at these provisions raises the question why Colombia did not specifically ask the Court to also interpret Article 143 OAS Charter. Whereas Colombia requests the Court to interpret Article 78 ACHR which regulates the denunciation of the Convention, it did not include the provision that regulates the denunciation of the OAS Charter. Perhaps the requesting state thought that Article 143 OAS Charter was not dealing with the protection of human rights and could therefore not be interpreted by the Court in the context of an advisory opinion. However, the phrase at the end of Article 143 OAS Charter stating that “the present Charter shall cease to be in force with respect to the denouncing State, which shall cease to belong to the Organization after it has fulfilled the obligations arising from the present Charter” (emphasis added) raises exactly the question whether “obligations” mean only financial obligations, that is to say, that the denouncing states must only cancel its outstanding debts with the Organization or whether the term “obligations” refer to all obligations arising under the Charter, thus also including the obligations concerning human rights.

Apparently, the narrow interpretation is the view generally held but, it was also stated that the obligations in terms of article 143 OAS Charter were not only economic ones. However, this latter broad interpretation would, if strictly applied, lead to the absurd result that an effective withdrawal from the treaty were almost impossible as many of the obligations emanating from the Charter, as for example the respect for the rights of the individual (Articles 3 lit. l, 17 OAS Charter) or the realization of a just social order (Articles 33, 45 OAS Charter), require permanent efforts of the states that can actually at no point in time be considered to be fully fulfilled.

From a global perspective of international law, it will be especially interesting to see how the Court is going to answer Colombia’s third question. Colombia calls it the “core of the request” as the Court’s reply shall help the remaining OAS member States to know how to react to continuing serious and systematic human rights violations by a denouncing state. In its request, Colombia asks the Court about the scope “obligations in terms of international law”. Given the restraints of the Court’s advisory jurisdiction addressed above, the Court could however limit its answer to the question whether the ACHR and the other treaties in terms of Article 64(1) ACHR oblige the States parties to react to a situation of serious and systematic violations of human rights in an American state which is not anymore party to the same treaty regime. Lastly, the Court shall clarify how the affected individuals themselves can try to enforce their rights. This could include the question of who they can claim protection against if their own state is not willing to protect their rights.

 

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3 Responses

  1. Luis Viveros Luis Viveros-Montoya

    Dear Ms Benz,

    Thank you for a very interesting post which is very much on point regarding the renewed importance of the IACtHR’s advisory function. About OC 25/18 if I may add, it was indeed obvious that the request aimed at getting a pronouncement on the Assange issue and therefore the obligations of non-American states. I raised this issue in the oral phase of proceedings—I appeared for University College London’s Public International Law Pro Bono Project—and urged the Court to abstain from addressing that issue. We argued that for the opinion to fall within the Court’s advisory mandate, it should neither concern an otherwise bilateral dispute nor a purely abstract question of purely academic interest. At that time the so-called “Muslim ban” of the Trump administration and Venezuela’s refugee crisis already provided for that context which made the exercise of jurisdiction “proper”.

    The OAS Charter denouncing states request filed recently by Colombia has many problems which you accurately identify. But I think there is one concrete issue which you may be missing, and which goes precisely to the admissibility element I just mentioned in the Assange issue. As things stand in the OAS, the question is abstract. At the OAS Venezuela’s interim government which holds that country’s representation at the OAS withdrew the denunciation before the two year expiry date provided for in the Charter, a lex specialis rule vis a vis the customary law of treaties norm (VCLT Art 56(2)).

    In any case, in my view the request is ill-conceived also on the basis that Colombia is asking a question about the human rights obligations of a non-American State defined as we know as States parties to the OAS Charter. If the Court were to address the obligations of American states vis a vis a denouncing State, the question would necessarily become more abstract, for there is no difference between a State which successfully denounces the OAS Charter and, say, China under the relevant rules of jurisdiction and admissibility of advisory proceedings.

    Best regards,

    Luis F Viveros-Montoya

  2. Eleanor Benz

    Dear Mr. Viveros-Montoya,

    Thank you very much for your comment and the information concerning the oral proceeding of the OC-25/18.

    Indeed, all the requests and especially the one submitted by Colombia in May raise much more issues than I could address in a short post. As to the aspect of Venezuela’s supposedly withdrawn denunciation of the OAS Charter I found it interesting, that the Court’s Legal Director in a video available on Youtube underlined that the Court as not being an OAS organ itself is not bound by the decision of the OAS to recognize Juan Guaidó as interim President and that he indicated that the Court at least as regards the matter of notification decided to continue to notify the Foreign Ministry in Caracas. Hence, the fact that the OAS accepted the withdrawal made by Guaidó’s interim government does not necessarily mean that the Court shares the opinion that the denunciation has been validly withdrawn. Therefore, and also in light of the internal debate on the topic of recognition inside the OAS I wouldn’t say that the question has been finally settled. But, as Colombia’s questions focus more on the abstract obligations of a state that has validly denounced the Charter and the obligations of the remaining Member States towards such a state and not so much on the requirements of a valid denunciation, I think that the question whether the Venezuelan denunciation has become effective or whether it has been validly withdrawn is not directly relevant with regard to the Court’s possible answer.

    As to your last point, I agree. Colombia’s questions are extremely far reaching. Therefore, I think it will be the biggest challenge for the Court, should it decide to give the opinion, to find the right balance between giving a useful and informative answer on the one hand without exceeding the limits of its advisory jurisdiction on the other.

    Best regards,

    Eleanor Benz

  3. Luis Viveros Luis Viveros-Montoya

    Dear Ms Benz,
    Thank you for your kind and thorough reply. Allow me if you will to offer some contrasting arguments in the spirit of constructive debate.

    First, there is nothing ‘supposed’ about the withdrawal of the denunciation at this point. To the extent the interim Government’s expression of international consent has been given full effect at the OAS, the question you may be asking should be based on a completely different factual and legal backgorund. Not only does Mr Guaido’s diplomatic envoys sit at the OAS General Assembly and the OAS Permanent Council—where their votes are tallied towards resolutions adopted therein—but the Inter-American Commission has continued to exercise its mandate in a manner which would not otherwise could if it weren’t giving effect to the withdrawal. Just to give you an example, last October—months after the relevant dates for either the denunciation or withdrawal to have taken effect—the Commission adopted precautionary measures in individual petitions filed against Venezuela.

    Second, the Court’s legal advisor’s statement is only partially accurate. It is true that the constitutive instrument of the IACtHR is the American Convention, not the OAS Charter. But that is not really the appropriate question we should be asking here. The Convention is a OAS treaty, exclusively open for ratification to OAS member states. Moreover, the IACtHR is intertwined with the OAS Charter constitutional system in a manner which makes it impossible for it to remain oblivious to the Venezuelan question. The advisory jurisdiction of the Court is perhaps the best example. On the one hand, that jurisdiction can only be exercised vis a vis “American States” defined as OAS Charter member states. On the other, all American States (same definition) can submit advisory requests to the Court. What if Guaidó submitted an advisory request to the Court? The points of connection are many more, some of them of fundamental importance. All American States (OAS parties), not only ACHR parties, can have one of their nationals be appointed as judges of the Court (remember judge Buergenthal?). Not only that, but the Court has reporting obligations vis a vis the UNGA, and the UNGA has exclusive competences for the amendment of the Convention, etc.

    Also, I am not sure that a youtube video of a member of the Secretariat of the Court can be construed as an expression of the Court’s views on this. However, I can appreciate the pragmatic issues involved there and the Court certainly has an interest for Venezuela to (1) comply with past decisions, and (2) continue to appear in cases under its jurisdiction. But the point is that a legal advisor’s statements are not the same as relevant State practice at the OAS.

    Third, you mention that the IACtHR does not have to take into account the Venezuelan question to entertain the request. The discretion to exercise the advisory jurisdiction—or rather the discretion to not exercise it—is limited amongst other things in that it cannot concern abstract issues of purely academic interest. Not only does the IACtHR follow the ICJ in this regard (see Other Treaties)—although a degree of abstraction is allowed (see Legal Status and Human Rights of the Child)—but States substantiate their requests by showing how an opinion of the Court would be useful to for them to comply with their human rights obligations. The Assange aside I made previously sought to confirm this point: the Court exercised its advisory jurisdiction within the confines of what is “proper” and therefore ignored all Assange-related issues and focused only on matters of practical importance in the continent. Those issues were not raised by Ecuador in its request, but they were argued by other States and participants in the written and oral phases of proceedings.

    Finally, I would submit the question that should be asked is whether the Court needs to form a view about international representation in this case. I would say yes because it would otherwise be exercising its advisory jurisdiction in a manner incompatible with its own admissibility case law. To the contrary, the Court does not have to form a view on that point for the Registry to submit notifications to Caracas (although it would have to if they were to notify decisions of the Court through the Venezuelan Mission to the OAS). Not all cases are the same, but this matter is comparable to questions at the centre of Palestine’s status before the ICC and ICJ. I would submit that whereas the ICC did not have to form a view on Palestinian Statehood, the ICJ may have to do so in Relocation of the US Embassy case which might therefore result in the case being inadmissible.

    The Venezuelan problem and its procedural implications before international courts and tribunals are not limited to the IACtHR. In Guyana v. Venezuela it would be the Maduro regime which could appear before the ICJ to the extent that it retains recognition at the UN. And yes, the problem is even deeper if you consider that we have the Inter-American Commission of Human Rights exercising its attributions on the inescapable premise that it is giving effect to Guaido’s Government expression of international consent (to remain within the OAS), but that it is the Maduro regime that holds a seat at the Human Rights Council, etc.
    So, yeah, it is a mess, just as Venezuela is right now. Nothing new under the sun.

    Best,

    Luis F Viveros-Montoya

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