Treaty interpretation by the Inter-American Court of Human Rights: Expansionism at the service of the unity of international law

European Journal of International Law

Volumn 21, Issue 3, 2010, Pages 585-604

  Lixinski, Lucas ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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[No Author keywords available]

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EID: 78149381830     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq047     Document Type: Article

References (79)

1. See Simma, 'Self-Contained Regimes', 16 Netherlands Yrbk Int'l L (1985) 111.
2. Making a similar claim with respect to the European Court of Human Rights see Tzevelekos, 'The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration', 31 Michigan J Int'l L (2010) 621, at 670-680.
3. See International Law Commission, 'Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law', Report of the Study Group, finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682, of 13 Apr. 2006.
4. For different perspectives see Dupuy, 'L'Unité de l'Ordre Juridique International: Cours Général de Droit International Public', 297 Recueil des Cours de l'Academie de Droit International (2002) 1 (defending the overall unity of the international legal order).
5. Conforti, 'Unité et Fragmentation du Droit International: "Glissez, Mortels, N'Appuyez Pas!", 111 RGDIP (2007) 5, at 6 (criticizing the ILC Report).
6. The relevant provision is the following: 'Article 29. Restrictions Regarding Interpretation.
7. No provision of this Convention shall be interpreted as: a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein; b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.'
8. Art. 1(1) ACHR is the obligation to respect and protect human rights, and the Art. which imposes an obligation on states parties.
9. This is the reason any violation of a provision of the ACHR is a violation of that provision in conjunction with Art. 1(1). Art. 2 is also a general obligation, and is that of adapting municipal legislation to the ACHR standards.
10. I/A Court HR, Case of Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits, Judgment of 6 May 2008, Series C No. 179, at para. 131.
11. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 16.
12. 8 I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of 14 July 1989, Series A No. 10, at para. 37.
13. This and all other cases from the Court referred to in this article are available at: www.corteidh.or.cr.
14. See I/A Court H.R., Case of Ricardo Canese v. Paraguay, Merits, Reparations, and Costs, Judgment of 31 Aug. 2004, Series C No. 111, at para. 181.
15. I/A Court H.R., Case of Herrera-Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 2 July 2004, Series C No. 107, at para. 184.
16. I/A Court H.R., Case of Baena-Ricardo et al. v. Panama, Merits, Reparations, and Costs, Judgment of 2 Feb.2001, Series C No. 72.
17. This idea finds less resonance in the European system, according to one commentator on interpretation by the European Court of Human Rights: see Toufayan, 'Human Rights Treaty Interpretation: A Postmodern Account of Its Claim to "Speciality", NYU Center for Human Rights and Global Justice Working Paper No. 2 (2005), at 10 (arguing that there is no preferred method of interpretation in the European system).
18. In a contrary sense see Meron, 'International Law in the Age of Human Rights - General Course on Public International Law', 301 Collected Courses of the Hague Academy of International Law (2003) 1, at 192-193.
19. See Cançado Trindade, 'International Law for Humankind: Towards a New Jus Gentium (II) - General Course on Public International Law', 317 Collected Courses of the Hague Academy of International Law (2006) 1, at 60.
20. See in this sense Joseph Weiler's Prolegomena in this volume.
21. I/A Court H.R., Case of the 'Mapiripán Massacre' v. Colombia, Merits, Reparations, and Costs, Judgment of 15 Sept. 2005, Series C No. 134, at paras 104-108.
22. The Court also mentions other references to rules of general international law in the American Convention.
23. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment of 17 June 2005.
24. Series C No. 125, at para. 126. See also I/A Court H.R., Case of Tibi v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 7 Sept. 2004, Series C No. 114, at para. 144.
25. I/A Court H.R., Case of the Gómez-Paquiyauri Brothers v. Peru, Merits, Reparations, and Costs, Judgment of 8 July 2004, Series C No. 110, at para. 164; I/A Court H.R., Case of the 'Street Children' (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 Nov. 1999, Series C No. 63, at paras 192-193.
26. I/A Court H.R., The Right to Information on Consular Assistance. In the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-16/99 of 1 Oct. 1999, Series A No. 16, at para. 113.
27. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment of 29 Mar. 2006, Series C No. 146, at para. 140.
28. This instrument was used instead of the ACHR because the US is not a party to the latter, and thus the competence of the Commission for hearing individual complaints, while still existent, is limited to the rights protected by the Declaration.
29. For commentaries on this case see Weissbrodt and Andrus, 'The Right to Life During Armed Conflict: Disabled Peoples' International v. United States', 29 Harvard Int'l LJ (1988) 59.
30. Heintze, 'On the Relationship between Human Rights Law and International Humanitarian Law', 86 IRRC (2004) 789, at 802.
31. Doswald-Beck and Vité, 'International Humanitarian Law and Human Rights Law', 293 IRRC (1993) 94.
32. These reasons are listed by Zegveld, 'The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case', 324 IRRC (1998) 505.
33. While the latter seems to be convinced by them, the former, who wrote the case note when the decision came out, was not persuaded by any of them, except the fifth one.
34. 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 24 Sept. 1982, Series A No. 1.
35. IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 Oct. 1997, at para. 157.
36. I/A Court H.R., Case of Las Palmeras v. Colombia, Preliminary Objections, Judgment of 4 Feb. 2000, Series C No. 67.
37. See Martin, 'Application du Droit International Humanitaire par la Cour Interaméricaine des Droits de l'Homme', 83 IRRC (2001) 1037, at 1039.
38. I/A Court H.R., Case of Bámaca-Velásquez v. Guatemala, Merits, Judgment of 25 Nov. 2000, Series C No. 70, at paras 203-214.
39. I/A Court H.R., Case of the Ituango Massacres v. Colombia, Preliminary Objection, Merits, Reparations, and Costs, Judgment of 1 July 2006, Series C No. 148, at paras 201-235.
40. I/A Court H.R., Case of Vargas-Areco v. Paraguay, Merits, Reparations, and Costs, Judgment of 26 Sept. 2006. Series C No. 155, at paras 111-134.
41. I/A Court H.R., Case of Almonacid-Arellano et al. v. Chile, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 26 Sept. 2006, Series C No. 154, at paras 86-133.
42. IACHR, Report n. 69/04, Petition 504/03, Admissibility, Community of San Mateo de Huanchor and its Members v. Peru, 15 Oct. 2004, at para. 16.
43. These other rights include the right to personal security, the rights of the child, and judicial protection.
44. App. No. 16798/90, López Ostra v. Spain (ECtHR), judgment of 9 Dec. 1994.
45. IACHR, Report n. 30/04, Petition 4617/02, Friendly Settlement, Mercedes Julia Huenteao Beroiza et al. v. Chile, 11 Mar. 2004.
46. The original petition illustrating this claim, along with other documents in the case, is available at the website of the Centre for International Environmental Law (CIEL), which was conducting the litigation in the case: see www.ciel.org (last accessed 7 Oct. 2009).
47. I/A Court H.R., Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 28 Nov. 2007, Series C No. 172, at paras 11-17.
48. This case is in several aspects very similar to App. No. 116/1996/735/932, Guerra and others v. Italy (ECtHR), judgment of 19 Feb. 1998.
49. I/A Court H.R., Case of Claude-Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment of 19 Sept. 2006, Series C No. 151, at para. 76.
50. I/A Court H.R., Case of Kawas-Fernández v. Honduras, Merits, Reparations, and Costs, Judgment of 3 Apr. 2009, Series C No. 196, at para. 140.
51. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgment of 31 Aug. 2001, Series C No. 79, at para. 146.
52. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment of 17 June 2005, Series C No. 125, at para. 130 (using the ILO Convention to interpret the right to property).
53. I mean here ratification in the international sense of Art. 14 VCLT. Even though the Court does refer to the municipal legislative acts which promoted the 'constitutional' or 'internal' ratification of the instrument, the Court does not offer much detail on the transposition of the instruments into municipal law, rather focusing on a more general idea of ratification which is in consonance with the international legal meaning of the term.
54. This para. deserves full transposition: '51. In view of the fact that the instant case addresses the rights of the members of an indigenous Community, the Court deems it appropriate to recall that, pursuant to Articles 24 (Right to Equal Protection) and 1(1) (Obligation to Respect Rights) of the American Convention, the States must ensure, on an equal basis, full exercise and enjoyment of the rights of these individuals who are not subject to their jurisdiction.
55. However, it is necessary to emphasize that to effectively ensure those rights, when they interpret and apply their domestic legislation, the States must take into account the specific characteristics that differentiate the members of the indigenous peoples from the general population and that constitute their cultural identity. The Court must apply that same reasoning, as it will do in the instant case, to assess the scope and content of the Articles of the American Convention, which the Commission and the representatives allege were breached by the State.'
56. I/A Court H.R., Case of López-Álvarez v. Honduras, Merits, Reparations, and Costs, Judgment of 1 Feb. 2006. Series C No. 141, at paras 169 and 174.
57. I/A Court H.R., Case of the Girls Yean and Bosico v. Dominican Republic, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 8 Sept. 2005, Series C No. 130, at para. 140.
58. A typical position is to show a certain reluctance in accepting investors, who are primarily economic actors, as bearers of human rights because of their condition as economic actors. While several constitutional traditions (notably those of Germany and Austria) recognize rights related to economic initiative as fundamental rights, this is still a somewhat controversial category of rights-bearers, since many investors (particularly transnational corporations) are often human rights violators themselves.
59. A possible way to reconcile this tension and award investors access as such to human rights jurisdictions is to think that, by allowing investors to appear before human rights courts, one eliminates in practice the bias of these bodies against economic actors. If they were put on the same level as those whose human rights they affect, investors would then not have the option of rejecting accusations against them brought by human rights bodies, because they had been given the status of rights-bearers themselves. This position retains most of the principled reticence to accepting investors, but still allows them access to human rights bodies.
60. For a collection of essays on the topic see P.-M. Dupuy, F. Francioni, and E.-U. Petersmann (eds), Human Rights in International Investment Law and Arbitration (2009).
61. As documented by Nikken, 'Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights'.
62. I/A Court H.R., Case of the Pueblo Bello Massacre v. Colombia, Merits, Reparations, and Costs, Judgment of 31 Jan. 2006, Series C No. 140 (regarding the population of a village raided by paramilitary forces in Colombia, where these forces perpetrated a massacre, besides other acts violating human rights).
63. See I/A Court H.R., Case of Yatama v. Nicaragua, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 23 June 2005, Series C No. 127, at paras 140-141.
64. It must be noted, though, that the recognition of the community as a victim in its entirety only appears in the part of the judgment dealing with reparations, there lacking a more explicit recognition of the possibility of abstract entities as such being victims of human rights violations.
65. It is also important to note that, in the specific circumstances of the case, Suriname municipal law granted the community the status of a legal right-bearing entity.
66. See also Nikken, 'Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights', in Dupuy, Francioni, and Petersmann (eds), supra note 66, at 260 (mentioning precedents of the Commission in which an abstract entity - the Venezuelan TV channel Globovisión - was the beneficiary of provisional measures).
67. For a more detailed account see.
68. A more recent precedent is the Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, in which the right to property of investors and company owners was found to be violated by the state by a seizure of property in the context of a criminal investigation of drug trafficking: see I/A Court H.R., Case of Chaparro-Álvarez and Lapo-Íñiguez v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 21 Nov. 2007, Series C No. 170, at paras 173-218.
69. Noteworthy in this sense is the approval in Sept. 2009 of the Additional Protocol to the ICESCR, which for the first time gave the Committee on Economic, Social and Cultural Rights the power to adjudicate individual communications regarding alleged violations of ESCR.
70. Before that, the only adjudicatory body with a clear ESCR mandate was the African Commission on Human and Peoples' Rights.
71. The full text of the provision is the following: 'Article 26. Progressive Development. The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.'
72. I/A Court H.R., Case of Acevedo Buendía et al. ('Discharged and Retired Employees of the Office of the Comptroller') v. Peru, Preliminary Objection, Merits, Reparations, and Costs, Judgment of 1 July 2009, Series C No. 198, at paras 80-91.
73. See for instance the cases in the section above, where the ownership of company shares was considered to be property (a few examples being I/A Court H.R., Case of Ivcher-Bronstein v. Peru, Merits, Reparations, and Costs, Judgment of 6 Feb. 2001, Series C No. 74, paras 120-122, at paras 120-122.
74. Preliminary Objections and Merits. Judgment of May 6, 2008 Series C No. 179, at para. 55.
75. I/A Court H.R., Case of Palamara-Iribarne v. Chile, Merits, Reparations, and Costs, Judgment of 22 Nov. 2005, Series C No. 135, analysed below (on intellectual property rights).
76. I/A Court H.R., Case of Acevedo-Jaramillo et al. v. Peru, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 7 Feb. 2006, Series C No. 144, at para. 283.
77. I/A Court H.R., Case of the Plan de Sánchez Massacre v. Guatemala, Merits, Judgment of 29 Apr. 2004, Series C No. 105, at para. 51.
78. I/A Court H.R., Case of Palamara-Iribarne v. Chile, Merits, Reparations, and Costs, Judgment of 22 Nov. 2005, Series C No. 135, at para. 96.
79. These events are well explained in I/A Court H.R., Case of Hilaire v. Trinidad and Tobago, Preliminary Objections, Judgment of 1 Sept. 2001, Series C No. 80, at paras 43-98.