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Inter-American human rights protection: how methods and rules of interpretation are framed Reindel, Florian 1993

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INTER-AMERICAN HUMAN RIGHTS PROTECTION:HOW METHODS AND RULES OF INTERPRETATION ARE FRAMEDbyFLORIAN REINDELStaatsexamen, Ludwig-Maximilians-Universitaet-Muenchen, 1991A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(Faculty of Law)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAApril 1993© Florian Reindel, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of^LawThe University of British ColumbiaVancouver, CanadaDate^24 March 1993DE-6 (2/88)11ABSTRACTThis thesis is an analytical study of the rules and methods in the respective culturalcontext used in the interpretation of human rights treaties. It involves an examination of theinterpretation methods and rules of "ordinary" international treaties, which are being comparedwith those of the interpretation methods and rules of human rights treaties.The Inter-American human rights protection system with the judgements of the Inter-American Court of Human Rights and the decisions of the Inter-American Commission onHuman Rights serve as an example.This thesis also includes a comparative overview of the various international and regionalhuman rights protection mechanisms.Human rights treaties have a special nature when being compared to other internationaltreaties. They are concluded by states which limit their sovereignty for an indefinite period oftime, while granting rights to individuals, who are not partners of the treaty. Through a processof evolution those treaties are not interpreted in the classic objective or subjective method ofinterpretation, but in a newly developed dynamic approach. That is, the meaning of the text islooked at under the intention of the treaty, however, under present day conditions. All codifiedand non-codified rules of treaty interpretation are applied, however, under the limitation that therights of the individual are being protected.111TABLE OF CONTENTSABSTRACT ^ iiTABLE OF CONTENTS ^  iiiLIST OF TABLES ^ xiiiLIST OF FIGURES ^ xivACKNOWLEDGEMENT ^ xvINTRODUCTION^  1CHAPTER ONE: Methodology of interpretation ^  4I. Definition of interpretation ^  4II. Function of interpretation  5III. Goals of interpretation ^  6IV. General methods of interpretation ^  7A. Textual method ^  7B. Systematic and teleological method (logical method) ^ 7ivC. Historical method ^  8CHAPTER TWO: International treaty interpretation ^  9I. Methods of interpretation in international law  9A. The basic approaches ^  91. Subjective method (intentional school) ^ 102. Objective method (textual school)  103. Teleological method (teleological school) ^ 114. Dynamic method (New Haven school)  11B. Means of interpretation in international law ^  141. The text of the treaty ^  14a. The treaty as a whole  14b. The context ^  142. Further textual means of interpretation ^ 15a. Travaux preparatoires ^  15b. Quasi-annexes  15c. Declarations and further utterances of the negotiators . . ^ 163. Object and purpose of the treaty ^  164. Other norms of international law  175. Subsequent action of the state parties ^  18C. Distinction by the interpreting person  191. Authentic interpretation ^  19V2. Judicial interpretation ^  203. Individual interpretation  21II. Rules for interpretation in international law ^  22A. Rules before the Vienna Convention on the Law of Treaties ^ 22B. Codified rules in the Vienna Convention on the Law of Treaties ^ 241. Article 31 General rule of interpretation ^ 252. Article 32 Supplementary means of interpretation ^ 303. Article 33 Interpretation of treaties authenticated in two or morelanguages ^  314. Outlook for possible changes regarding codification of rules . . ^ 33B. Non-codified rules ^  341. "contra proferentem" ^  342. "in dubio mitius"  363. "ut res magis valeat quam pereat" ^  374. "friendly to international law"  375. Further rules ^  39a. "cy-pres"  39b. "prohibitory versus permissive" ^ 39c. "expressio unius est exclusio alterius" ^ 40d. "eiusdem generis" ^  40III. Conclusion ^  41viCHAPTER THREE: International human rights protection ^  42I. International treaties, covenants and declarations  43II. Regional instruments to protect human rights ^  45A. Europe ^  46B. Africa  48C. Arabia ^  51D. America  511. The Inter-American Commission on Human Rights ^ 53a. Historical development ^  53b. Composition ^  56c. Procedures and effects ^  572. The Inter-American Court of Human Rights ^ 60a. Historical development ^  60b. Composition ^  61c. Procedures and effects ^  61CHAPTER FOUR: Interpretation of human rights treaties: The example of the Inter-American System ^  66I. By the Inter-American Court ^  66A. In cases ^  661. Viviana Gallardo ^  66a. History of the case  66viib. Methods applied ^  67c. Rules applied  682. Velasquez Rodriguez ^  68a. History of the case  69b. Methods applied ^  72c. Rules applied  753. Fairen Garbi and Solis Corrales ^  75a. History of the case  75b. Methods applied ^  76c. Rules applied  774. Godinez Cruz ^  78a. History of the case ^  78b. Methods applied  79c. Rules applied ^  815. Cases pending before the Court ^  82a. Bustios and Rojas ^  82b. Aloeboetoe  83c. Gangaram-Panday ^  85d. Neira-Alegira  87B. In advisory opinions ^  881. No. 0C-1/82 - "other treaties" ^  88a. History of the opinion  89vi"b. Methods used in the opinion ^  90c. Rules applied ^  912. No. 0C-2/82 - "entry into force and reservations" ^ 92a. History of the opinion ^  92b. Methods applied  93c. Rules applied ^  943. No. OC-3/83 "death penalty"  95a. History of the opinion ^  95b. Methods applied  96c. Rules applied ^  974. No. OC-4/84 "amendments to the naturalization provisions ofthe Political Constitution of Costa Rica" ^ 97a. History of the opinion ^  97b. Methods applied  98c. Rules applied ^  995. No. 0C-5/85 "Compulsory membership in an associationprescribed by law for the practice of journalism" ^ 99a. History of the opinion ^  99b. Methods applied  100c. Rules applied ^  1006. No. 0C-6/86 "The word laws in Article 30" ^ 101a. History of the opinion ^  101ixb. Methods applied ^  102c. Rules applied  1027. No. 0C-7/85 -"Enforceability of the right to reply orcorrection" ^  103a. History of the opinion ^  103b. Methods applied  104c. Rules applied ^  105^8. No. OC-8/87 -"Habeas Corpus in emergency situations"   105a. History of the opinion ^  105b. Methods applied  106c. Rules applied ^  1069. No. OC-9/87 -"Judicial guarantees in the state of emergency" ^ 107a. History of the opinion ^  107b. Methods applied  109c. Rules applied ^  10910. No. OC-10/89 "Interpretation of the American Declaration ofthe Rights and Duties of Man within the framework ofArticle 64 of the American Convention on HumanRights" ^  109a. History of the opinion ^  110b. Methods applied  111c. Rules applied ^  112x11. No. OC-11/90 -"Exceptions of the exhaustion of domesticremedies" ^  112a. History of the opinion ^  112b. Methods applied  114c. Rules applied ^  11412. No. 0C-12/91 -"Compatibility of draft legislation of theRepublic of Costa Rica with Article 8(2) (h) of theConvention" ^  115a. History of the opinion ^  115b. Methods applied  116c. Rules applied ^  117II. By the Inter-American Commission on Human Rights ^ 117A. Decisions prior to the adoption of the Vienna Convention on the Lawof Treaties, May 23, 1969 ^  1171. Communications: Repatriated Haitian citizens and the Beauvoir-Florez Case ^  118a. History of the communications ^ 118b. Methods applied ^  118c. Rules applied  1192. Country reports: Haiti 1963 ^  120a. History of the report  120b. Methods applied ^  121xic. Rules applied ^  121B. Decisions in between the adoption of the Vienna Convention 23.5.1969and the first judgement of the Court 22.7.1981 ^ 1211. History of the "baby boy" case ^  1222. Methods applied ^  1233. Rules applied  125C. Decisions after the first judgement of the Court 22.7.1981 ^ 1261. As organ of the convention ^  126a. Relationship between the Commission and the Court^126b. Methods applied ^  128c. Rules applied  1282. As organ of the OAS ^  128a. History of the Stephen Schmidt case ^ 128b. Methods applied ^  130c. Rules applied  130CHAPTER FIVE: Conclusion ^  131BIBLIOGRAPHY ^  139APPENDIX 1 ^  146xiiAPPENDIX 2 ^ 151xiiiLIST OF TABLESTable 1: Progress of cases in front of the Inter-American Court of Human Rights . . . . 146Table 2: (continued) Progress of cases in front of the Inter-American Court of HumanRights ^  147Table 3: Status of the American Convention on Human Rights as of January 1st,1990 ^  148Table 4: Status of the European Convention on Human Rights and Fundamental Freedoms asof January 1st, 1993 ^  149xivLIST OF FIGURESFigure 1: OAS Procedure of the Inter-American Commission on Human Rights ^ 151Figure 2: Procedure of the Advisory Jurisdiction before the Inter-American Court of HumanRights   152Figure 3: Procedure of Adjudicatory Jurisdiction before the Inter-American Court of HumanRights   153XVACKNOWLEDGEMENTLike most students, I have accumulated numerous debts in writing this thesis. I havetaken advantage of the goodwill of many teachers and friends.I am especially grateful to Karin Mickelson for her careful critical comments on, andadvice for revisions of the draft of this thesis, over the last six months during which it tookshape.I also thank Ivan Head, who has read and discussed the draft with me. This thesis ismuch better for their comments, criticisms and advice -and probably would have been better stillif I had listened more attentively.I owe a special debt to Pitman Potter, who apart from reading this thesis, resolved withprompt action all the technical problems surrounding this thesis.I will not forget to appreciate the help of Ian Haysom, editor-in-chief of the "VancouverSun", who was kind enough to edit my writing into the proper English language.Acknowledgements always seem inadequate recognition and recompense, but this isparticulary true in the case of those like Kris Pastro, who was just there, whenever I needed afriend, who would listen to me.Vancouver B.C.^ Florian Reindel1INTRODUCTIONCompared with most other international agreements, human rights treaties have a uniquecharacter. They are not concerned with the regulation of mutual relations and the exchange ofbenefits between sovereign states. Instead they proclaim principles for the humane treatment ofthe inhabitants of the participating states. The granting of such rights used to be a matter whichlay within the domestic jurisdiction of a sovereign state and was located within its exclusivecompetence. Since the end of the Second World War this issue has become the subject ofinternational protection and supervision.International treaties are interpreted according to or in accordance with a certain set ofmethods and rules. This thesis is intended to address the question of whether the methods andrules applied in the interpretation of human rights treaties differ from the ones used for"ordinary" international treaties.Chapter 1 provides a general overview of the methodology of treaty interpretation. Thisincludes a definition of interpretation, and a discussion of the function, the goals and the meansof interpretation.The first of the two main parts of the thesis outlines the methods and rules which areused in international treaty interpretation (chapter 2). These are then compared with the methodsand rules used in interpreting human rights treaties (chapter 4). The differentiation betweenmethods and rules is a theme throughout the thesis.In chapter 3 the international and regional human rights protection mechanisms arepresented. Due to their vast number, only the major international mechanisms, which are2affiliated with the United Nations, are outlined in order to understand the historical context ofhuman rights protection. The European, African and the beginnings of the Arabian regionalprotection instruments are considered. Special attention is given to the Inter-American system.Since the number of those instruments is quite large and growing almost every year, the analysisin chapter 4 of the methods and rules applied in the interpretation of human rights treaties iscarried out through a study of the Inter-American human rights protection system. As thenumber of judgements of the Inter-American Court is still limited, they are analyzed in detailwith a view to highlighting the methods used and the rules applied. The advisory opinions of theInter-American Court are evaluated in detail. The vast number of decisions of the Commissionare considered in the form of excerpts, whereby the leading cases for each time period areanalyzed. Throughout the thesis the judgements of other adjudicative bodies, which areconcerned with the interpretation of other human rights treaties outside of the Americas, arementioned in order to stress principles of international treaty interpretation.As the methods of treaty interpretation have changed, or, as some would say, evolvedover the years, another aim of this paper is to explore the changes in methodology when humanrights treaties instead of "ordinary" international treaties are interpreted.The basic rules for treaty interpretation have been codified in Articles 31, 32 and 33 ofthe Vienna Convention on the Law of Treaties. The structure of those rules is looked at. Someprovisions seem to be unclear and several principles which were known to customaryinternational law were not included. The rules of the Vienna Convention were drawn up fortraditional international treaties, where states exchange rights and duties in a reciprocal manner.Another aim of this thesis is to consider which of those rules are appropriate for the3interpretation of human rights treaties. Possible changes to the current codification ofinterpretation rules, in the form of a new convention and possible amendments to the existingconvention, are also discussed.A conclusion sums up the discovered results.The appendix contains charts explaining the procedure of a complaint under the OAS-Charter and under the American Convention of Human Rights. Tables show the progress ofcases before the Inter-American Court of Human Rights, give reference to where these can befound and show the status of the American and European Conventions.4CHAPTER ONE: Methodology of interpretationI. Definition of interpretationInterpretation of law is an intellectual activity. It is part of hermeneutics', the form ofactivity "which aims at explaining and expounding the meaning and scope of an utterance" 2 .This utterance can be a statute, treaty or judgement. The importance of the proper understandingof any utterance, may be illustrated by the following case.In 1952, Derek Bentley, age 19, and Christopher Craig, age 16, were surprised by armedpolice on the roof of a London warehouse they intended to rob. Craig had a gun but Bentley wasunarmed. Shots were exchanged and an officer, Sydney Miles, was killed. Both teenagers weretried and convicted of murder. Bentley was hanged, but Craig escaped the gallows because hewas too young. Jailed for life, he served 10 years before being released in 1963. Bentley washanged on the basis of evidence that he shouted the words: "Let Him Have It!" This exclamationcan be understood in two senses; either "Hand your gun to the officer" or "Shoot him". At thetrial before Lord Goddard, the words were considered "the most serious piece of evidence"against Bentley. The evidence is even today under dispute and a recent request for a posthumouspardon was turned down by the Home Secretary of the United Kingdom.'This short example shows how important interpretation can be, when the proper'G. Leyh, ed., Legal Hermeneutics (Berkeley: University of California Press, 1992).2A. Bredimas, Methods of Interpretation and Community Law  (Amsterdam: North Holland,1978) at 3.3 "No pardon for teenager hanged 40 years ago" The Vancouver Sun (2 October 1992) A 11.5understanding of an "utterance" is concerned.II. Function of interpretation'Generally, interpretation can fulfil two different tasks: either, in a narrower sense, it isa tool to understand the meaning of a judicial text (Rechtsfindung) or, in a wider sense, it isused to fill a gap, which has opened up due to a problem arising which is not covered by thepresent law (Rechtserfindung). The first function therefore may be described as "making the textclear to oneself', the second function as "making the text understandable". To accomplish bothtasks, one can approach the text in different ways. These are called methods. Methods ofinterpretation can be described as vehicles which help the interpreter "to ascertain the meaningof the law by reference to three fundamental elements: the text, the intention and the object'.As those different approaches may lead to almost any result, rules have to be established to makeinterpretation predictable and restrain the interpreting body from altering the treat?. Such rulescan be either part of codified law, such as the Vienna Convention on the Law of Treaties, or canbe part of customary law, when they are drawn from previous judgements; alternatively they areset out in the treaty itself. The interpretation of human rights treaties serves the same function.'For an example of a strong critic of the function of treaty interpretation see J. Stone,"Fictional Elements in Treaty Interpretation" (1955) 1 Sydney Law Review 344.5A. Bredimas, supra note 1 at 3.6"It is the duty of the Court to interpret the Treaties, not to revise them". Interpretation ofPeace Treaties with Bulgaria. Hungary and Romania, [1950] I.C.J. Rep. 229.6III. Goals of interpretation"The fundamental rule in interpreting ambiguous statutes is that a judge must ascertainthe intent of the legislature in enacting the statute".' This statement, taken from a treatise onthe Canadian legal system, illustrates one of the two major doctrinal approaches towardsinterpretation. The quote reflects the Anglo-American approach, which adopted the "sense-claire" doctrine of the Roman "digesten", which allows interpretation only if there is anambiguous meanings . In contrast, in the civil law tradition any legal statute may be interpreted,even if the statute itself seems to be clear and understandable'. The above mentioned "sense-claire" doctrine was proclaimed as being a principle of international law in the first treatisewhich was written on the interpretation of international treaties'. However, today's doctrinalapproach follows the civil law system as Article 31 of the Vienna Convention on the Law ofTreaties does not require an ambiguous meaning. The second requirement of the abovementioned quote --to determine the intention of the legislature-- or in this case the intention ofthe state parties, raises the question of which interpretation method should be used: a subjective'G. Gall, The Canadian Legal System, 3rd ed. (Toronto: Carswell, 1990) at 315.sL. 25 D. 32,1: "Cum in verbis nulla ambiguitas est, non debet admitti voluntatis questio":if no ambiguous meaning (can be found) in the words, one may not ask for the intention (of thetreaty partners). (Translation by the author).'Reference for the civil law example Germany: Palandt-Heinrichs, Buergerliches Gesetzbuch,50th ed. (Beck: Muenchen 1990) at Introduction Nr. 34."E. Vattel, Le droits de gens ou principes de la loi naturelle. vol. 2, trans. J. Chitty(London: Sweet, Stevenson, Bell and Maxwell, 1834) at Chap. XVII, # 263: "La premiereMaxime generale sur l'interpretation est, qu'il n'est pas permis d'interpreter ce qui n'a pasbesoin d'interpretation."7meaning, stressing the intention of the state parties; an objective meaning, stressing the meaningof the text; a teleological meaning, stressing the reason of the treaty; or a dynamic meaning,looking at the meaning of the treaty according to its intention under present conditions. It is oneaim of this thesis to point out the differences in the methods of interpretation of human rightstreaties in comparison to "ordinary" international treaties.IV. General methods of interpretationA. Textual methodThe grammatical method begins with an emphasis on the text as its primary source.Following this method, one tries to determine the meaning of a rule from its wording, startingwith the ordinary meaning of the sentence in common use, moving to the general meaning inlegal terms and ending with a consideration of the special terminology of the specific rule."Text" in this context is any legal utterance, in written or oral form.The specific implementation of this method is determined by rules. The value of thismethod for the interpretation of human rights treaties will be shown in case examples in chapterfour.B. Systematic and teleological method (logical method)The logical interpretation involves a dual approach. By looking at the context in which8the phrase or even the entire rule stands in relation to the other provisions of the treaty, otherlaws or even the rules of the entire international legal system, one tries to comprehend themeaning and the purpose" of the provision or term. This is achieved by a systematic analysislooking at the position this rule has in regard to other laws and the system of international law.Applying this method one might reach opposite results to the grammatical interpretation. Thelogical method thus may be the necessary corrective. If the provision in question has beenshaped too widely or too narrowly, one will reach a restrictive or a broad interpretation. Thedecision, which method to apply is determined partially through the set of rules of interpretation,which is applicable.C. Historical methodA secondary tool to logical interpretation is the historical method, which looks at thehistorical development of the law and compares previous and similar statutes. A further tool isto look at the history of the drafting of the specific provision with special emphasis on thediverse comments of the drafters which might not necessarily have become part of the rule. Thisapproach is referred to as the "genetic method". How much of this "travaux preparatoires" maybe used is again determined by rules.This method appears to be necessary for the interpretation of human rights treaties."See Chapter Two, I, A, 3, below, for a discussion of the teleological method.9CHAPTER TWO: International treaty interpretationSome scholars question the value of the classification of methods and rules'."Numerous rules, canons, and principles have been laid down by international tribunals,and by writers to be used as tools in the interpretation of treaties, and to serve as useful,indeed necessary, guidelines to the drafting of treaty provisions. These rules, canons, andprinciples, although sometimes invested with the sanctity of dogmas, are not absoluteformulae, but are in every sense relative --relative to the particular text, and to theparticular problem that is in question."'To some extent Starke is right as some scholars overdid the classification of rules andmethods with an almost mathematical perfection. Even when several of those methods and ruleshave to be applied in conjunction with each other, rather than alone, like the presumptions inthe law of evidence in the common law system", it is still possible to determine certainstructures of interpretation. Those will be classified as methods and rules in the followingchapter.I. Methods of interpretation in international lawA. The basic approaches12 "We are amongst those who are sceptical as to the value of these so-called rules and aresympathetic to the process of their gradual devaluation, of which indications exist." LordMcNair, The Law of Treaties (Oxford: Clarendon Press, 1961) at 366. This statement washowever written in 1961, before the adoption of the Vienna Convention.13J. G. Starke, Introduction to International Law, 10th ed. (London: Butterworth, 1989) at478.lanif [those rules] are allowed to become our masters instead of our servants these guidescan be very misleading." McNair, supra note 12, at 366.101. Subjective method (intentional school)When dealing with ambiguous provisions, the subjective method starts out by attemptingto ascertain the historical intention of the parties adopting the agreement. The intention of theparties becomes an independent basis of interpretation. This method was favoured ininternational law before the drafting of the Vienna Convention on the Law of Treaties.2. Objective method (textual school)The objective method centres on the actual text of the agreement and emphasises analysisof the words used 15 . The International Law Commission, in its work leading to the ViennaConvention on the Law of Treaties, took the view that what matters is the intention of the partiesas expressed in the text, which is the best guide to the more recent common intention of theparties. The jurisprudence of the International Court of Justice supports the textual approach'and it is adopted in substance in Section 3 of the Vienna Convention on the Law of Treaties.One of the reasons, the objective methods was preferred over the subjective method was the factthat the subjective will of the treaty partners were hardly ever been made public or it tended to"Sir I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester:Manchester University, 1969) at 114,115.16Sir G. Fitzmaurice, "The Law and Procedure of the International Court of Justice: TreatyInterpretation and certain other Treaty Points" in 26 British Yearbook of International Law 1951at 1-28 and "The Law of Procedure of the International Court of Justice 1951-4: TreatyInterpretation and other Treaty Parts" in 33 British Yearbook of International Law 1957  at 203-293.11change as the years passed by.3. Teleological method (teleological school)The third approach adopts a wider perspective than the other two schools. The objectsand purposes of the treaty are emphasised "as the most important backcloth against which themeaning of any particular treaty provision should be measured'. The teleological schoolemphasises the role of the judge since he is called upon to define the object and purpose of thetreaty and therefore it has been widely criticized as "judicial law making" ° .4. Dynamic method (New Haven school)The dynamic method has its origin in the principle of effectiveness. This principle hadto be used in order to give effect to provisions in accordance with the intentions of theparties° . The principle of effectiveness, with its "broader purpose approach" 20 , is used in two'7M. Shaw, International Law, 10th ed. (London: Butterworths, 1989) at 479.°Ibid.°Corfu Channel Case, [1949] I.C.J. Rep. 4.Ambatielos Case, [1952] I.C.J. Rep. 28.And a more recent example: United States Diplomatic and Consular Staff in Teheran, [1980]I.C.J. Rep. 3, when it ruled that a dispute which was pending before the Security Council, didnot prevent the Court from exercising jurisdiction. This is contrary to a prohibition to this effectregarding the General Assembly: "[u]nder Article 36 (3) of the UN-Charter, the SecurityCouncil makes recommendations to settle disputes, however legal disputes should as general rulebe referred to the Court."20M. Shaw, supra note 17, at 481.12areas in a dynamic manner. One is when a treaty operates as the constitutional document of aninternational organisation. For example, the Charter of the United Nations demands a moreflexible method of interpretation, since one is dealing with an instrument that is being used inorder to accomplish the stated aims of that organisation'. Here the concept and nature of thesubsequent state practice22 has a special relevance. This programmatic interpretation has beenused to infer powers which were not expressly provided for in the Charter, but which weredeemed necessary for the purposes of the United Nations'.The second area where the principle of effectiveness is used in a dynamic (sometimescalled "evolutive") approach to interpretation is in the interpretation of human rights treaties.Human rights treaties involve an objective obligation to protect human rights instead ofsubjective reciprocal rights. Therefore, in this area a flexible programmatic and purposeorientated method of interpretation has tended to be adopted'. The European Court of HumanRights established this method as being its most significant for the interpretation of human rights21An example for enabling an organisation to function more efficiently can be found in theAdvisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations,[1949] I.C.J. Rep. 174.22See Chapter Two, I, B, 5 below, for a discussion of the subsequent state practice."The Competence of the General Assembly for the Admission of a State Case , [1950]I.C.J. Rep. 4.'First appearance in a case related to human rights: "Austria v. Italy" (1960) in 4 Yearbookof the European Convention on Human Rights 1961  (The Hague: Martinus Nijhoff, 1962) at116.The Inter-American Court of Human Rights used this method for the first time in the AdvisoryOpinion OC-2/82, Effect of Reservations on the Entry into force of the American Conventionon Human Rights (1982), 22 I.L.M. 37. See Chapter Four, I, B, 2, below, for a discussion ofthis advisory opinion.13treaties through a series of cases". Since the Tyrer decision, one quote has been repeatedlycited: "[T]he Convention is a living instrument, which has to be interpreted in the light ofpresent day conditions". This quote can be found in almost every decision the Court hasrendered since. The significance of this method may be illustrated by the Tyrer Case itself. ABritish subject complained about corporal punishment in the form of birching that he hadreceived from a local court on the Isle of Man. In the year 1950, when the United Kingdombecame a state party to the Convention, on behalf of the separate entity of the Isle of Man,whose foreign relations are taken care of by the Parliament of Westminster, corporal punishmentwas still considered an acceptable measure. Over the years, the public opinion regardingcorporal punishment changed and in 1975 this form of punishment was no longer consideredacceptable to the common standards of the European nations. The dissenting opinion of theBritish judge Fitzmaurice illustrates that the dynamic approach was not followed by everymember of the Court. Judge Fitzmaurice proclaimed himself to be biased in this case, (aremarkable statement for judge!), he stated that he himself had received such punishment duringhis youth and felt that it had not harmed him, but improved him.Use of the dynamic method is limited by the consideration that it should not result inalteration of the treaty", as "it does not warrant an interpretation which works a revision of'Golder Case (1975), Eur. Ct. H.R. Ser. A, No.18 at 18: "[T]his is not an extensiveinterpretation forcing new obligations on the Contracting States: it is based on the very termsof the first sentence of Article 6(1) read in its context and having regard to the object andpurpose of the Convention, a law making treaty and to general principles of law."Tyrer Case (1978), Eur. Ct. H.R. Ser. A, No.26 at 15.Marcx Case (1979), Eur. Ct. H.R. Ser. A, No.32 at 14."South West Africa Case, [1966] I.C.J. Rep. 6 and 48.14the treaty or any result contrary to the letter and the spirit of the treaty" 27 .B. Means of interpretation in international law1. The text of the treatya. The treaty as a whole"In considering the question before the Court upon the language of the Treaty, it isobvious that the Treaty must be read as a whole, and that its meaning is not to bedetermined merely upon particular phrases which, if detached from the context, may beinterpreted in more than one sense."'The treaty in all its parts, including the preamble and the annexes, has to be consideredfor purpose of interpretation. The "treaty" for this purpose may be, according to thecircumstances the complete treaty or a self-contained part of it or even a single article'.b. The contextThe context seen in a wider sense includes all further agreements. According toJ.G. Starke, supra note 13 at 481.'Competence of the International Labour Organization to Regulate Agricultural Labour(1922), P.C.I.J. Ser. B, No. 2 and 3 at 23.29Lord McNair, supra note 12 at 381.15McDougal", all conditions, which are important "for the world constitutive process ofauthorative decision" belong to the context. Those are according to McDougal,"changes in the interdependence and in the recognition of interdependences, amongpeoples, affecting the potentialities of sanctions, changes in the relative strength of thevarious contending world public orders, which honour persuasion and coercion asinstruments of social change in differing degree, changes in the composition of territorialcommunities and functional groups, affecting both the modalities of communication andthe perception of common meanings, changes in the technology of communication andthe recording of communication, changes of cooperative strategies in the shaping andsharing of particular values, affecting expectations about the future modalities of suchcooperation."2. Further textual means of interpretationa. Travaux preparatoiresA discussion of the influence of preparatory work will be undertaken below under theheading "Rules before the coming into force of the Vienna Convention on the Law of Treaties."b. Quasi-annexesAnnexes, as shown above, are part of the treaty as a whole. However, documents, called"quasi-annexes", which are standing only in a distant relation to the treaty conclusion and arethemselves not part of the treaty are used for purposes of treaty interpretation. Even in30M. McDougal, H. Lasswell & J. Miller, Interpretation of Agreements and World PublicOrder (New Haven: Yale University, 1967) at 34.16contradiction to their formal position, they are used as such means, "if there is a materialinternal connection to the document being interpreted". 31c. Declarations and further utterances of the negotiatorsThe use of declarations is highly disputed for the purpose of treaty interpretation;however, it is applied from time to time. The problem involved has been well described by SirEric Beckett::...[i]f everybody at a conference, where there are committees and minutes, reallythought that the speeches there made were going to be vital for the ultimate instrument,the meetings, which are rather laborious and lengthy in any case, would be longer still.It would be almost as difficult to obtain agreement on the minutes of every meeting asit is upon the text of the ultimate instrument. Some people do think this. Theirinterventions are lengthy and they make difficulties about every minute every time. Otherpeople attach less value to speeches and minutes. They are thinking only of the ultimatetext and assume that these discussions and minutes are of very ephemeral value andimportance'.3. Object and purpose of the treatyThe main object and purpose, sometimes referred to as aim and purpose, of the treaty'The classic example is the Ambatielos Case [1952] I.C.J. Rep. 44: "...the provisions ofthe Declaration are in the nature of an interpretation clause, and as much, should be regardedas an integral part of the Treaty even if this was not stated in terms..."3243 Annuaire de l'Institut de droit international (1950) at 435. Further he talks about thefact that the real decisions are taken outside the conference room and therefore will never appearin the protocols.17becomes vital for treaties in connection with the admissibility of reservations". Even Vatter'believed that it was impossible to entirely leave out the object and purpose. Instead of onlyseeking to understand and give effect to the intention which the parties had in common, theobject, or overall aim and purpose of the treaty is to be kept in mind, while interpreting." ThePermanent Court of International Justice referred to the aim and scope several times:... [such regulations are] clearly inconsistent with the aim and the... scope of Part XIII[of the Treaty of Versailles and that if any such limitation] had been intended, it wouldhave been expressed in the Treaty itself.'4. Other norms of international lawA treaty provision does not exist in an otherwise empty space. It is part of theinternational legal order which exists among the members of the international community ofsubjects of international law."It is clear that treaties themselves are part of international law as accepted by [the]contracting powers and it may be safely assumed that, when the treaties were concluded,both parties considered them as being agreed upon as special provisions to be enforced"Example in the Advisory Opinion Reservations to the Convention on Genocide, [1951]I.C.J. Rep. 15."E. Vattel, Le droits de gens ou principes de la loi naturelle, trans. J. Chitty, vol. 2,(London: Sweet, Stevenson, Bell and Maxwell, 1834) at Chapter XVII, Section 287: "La raisonde la Loi, ou du Traite, c'est-a-dire le motif qui a porte a les faire, la vue que l'on s'y estproposee, est un des plus surs moyens d'en etablir le veritable sens...""Dissenting opinion of Judge Anzilotti in the Employment of Women during the Night Case(1932), P.I.C.J. Ser. A/B, No.50 at 383.'Advisory Opinion upon the Competence of the International Labour Organization toRegulate the Personal Work of Employers (1926), P.I.C.J. Ser. B, No.13 at 6 and 18.18between them in what may be called the atmosphere and the spirit of international lawas recognized by both of them."'5. Subsequent action of the state partiesThe subsequent action of the parties under the agreement are additional means ofinterpretation. These actions are indices of the expectations of the treaty partners. The excerptfrom the following judgement illustrates the importance of the subsequent state practice:"These declarations constitute recognition by the Union Government of the continuanceof its obligations under the Mandate and not a mere indication of the future conduct ofthat Government. Interpretations placed upon legal instruments by the parties to them,though not conclusive as to their meaning, have considerable probative value when theycontain recognition by a party of its own obligations under an instrument. In this casethe declarations of the Union of South Africa support the conclusions already reached bythe Court."'Therefore they are more helpful than the plain text "to determine the genuine sharedexpectations of the parties to an agreement."' As Lord McNair put it:"Here we are on solid ground and are dealing with a judicial practice worthy to be calleda rule, namely that, when there is a doubt as to the meaning of a provision or anexpression contained in a treaty, the relevant conduct of the contracting parties after theconclusion [...] has a high probative value as to the intention of the parties at the timeof its conclusion. "4°Two categories of subsequent action may be distinguished: first, those that comply with'Department of State, "Arbitral Decision: the Kronprins Gustav Adolf Case" (1932) 26A.J.I.L. 839.'Advisory Opinion upon the International Status of South-West Africa. [1950] I.C.J. Rep.13539M. McDougal et al., supra note 30 at 96.'Lord McNair, supra note 12 at 424.19the text and, second, those that are in contradiction to the text. Both categories can besubdivided again into either the one-sided but tolerated practice of one party or a mutual practiceof both parties. The latter one of these last mentioned two categories can either be an authentictreaty interpretation' or a treaty alteration'.C. Distinction by the interpreting person1. Authentic interpretation'As there is no central legislative body in the international legal system, interpretation hasto be achieved through the consent' of the treaty partners. In Article 31 III b of the ViennaConvention this method has been codified.The major problem about authentic interpretation is to identify it. The boundariesbetween authentic interpretation and the alteration of a treaty by the state parties fluctuate."Diplomatic conferences which adopt a treaty are only too conscious themselves of draftingdefects. To avoid any difficulties arising out of the construction of particular clauses or articles,'See Chapter Two, I, C, 1, below, for the distinction between authentic interpretation andtreaty alteration.'Example for the alteration of a treaty by mutual subsequent action can be found in theTemple of Preah Vihear Case: "Both parties, by their conduct, recognized the line and thereforein effect agreed to regard it as being the frontier line", [1962] I.C.J. Rep. 33.431. Voicu, De l'interpretation authentique des traites internationaux, (Paris, 1968).44Jaworzina Case (1923), P.C.I.J. Series B, No.8, at 37: "...suivant une doctrine constante,le droit d'interpreter authentiquement une regle juridique appartient a celui-la seul qui a lepouvoir de la modifier ou de la supprimer..."20an instrument such as a Protocol, or Proces-Verbal, or Final Act is often annexed to the mainconvention containing a detailed interpretation or explanation of the doubtful provisions"." Theclassic example of authentic treaty interpretation is the appendix" to the European SocialCharter', wherein the state parties define how they interpret certain terms set forth in theCharter. Since this appendix was included into the Charter during and through the adoption ofthe Charter, it can neither be an alteration nor a reservation to the Charter. Therefore it mustbe an authentic interpretation of the Charter.2. Judicial interpretationJudicial Interpretation is carried out either by international courts or tribunals, such asthe Inter-American Court of Human Rights or the European Court of Human Rights, or byinternational arbitration courts, tribunals or other international technical organs, such as theInternational Labour Office" and various organs of the United Nations". It is now general45J.G. Starke, supra note 13 at 477."European Social Charter, Article 38.47529 U.N.T.S. 89."Every international convention adopted by the International Labour Conference has abearing -however slight- upon the realization of human rights and fundamental freedoms. Theconventions adopted by the conference in the 70-year period between 1919 and 1989 issometimes referred to as the "International Labor Code". A full list can be found in E. Lawson,ed., Encyclopedia of human rights,  (Washington D.C.: Taylor and Francis, 1991)."Each organ of the United Nations is supposed to do its own interpretative work. The SanFrancisco Conference, where the Charter was drafted, established this idea. Report of theRapporteur of Committee IV/2 the Conference, p.7 and 8.21practice that the treaty partners include in the treaty a dispute clause, especially in multilateraltreaties, providing for methods of settling disputes arising as to the interpretation or applicationof the treaty. Quite often jurisdiction on this matter is rendered to a certain body, e.g. an ad hocCommittee of Jurists, which will be described in this dispute clause.The alternatives are negotiations between the parties, arbitration, conciliation or simplyjudicial settlement.3. Individual interpretationFinally treaties can be interpreted by one of the treaty parties alone. This is the mostcommon form of treaty interpretation, which we can observe in the daily news. A unilateralinterpretation of a treaty by organs of one state would not be binding upon the other parties'.It is important to note, that as long as this "interpretation" occurs in written form during the timeof the signature or ratification of the treaty, this measure can be a reservation according toArticles 19 ff of the Vienna Convention on the Law of Treaties. A reservation, rather than aninterpretation, is being done, "when the effect of the treaty propositions [is] prevented oraltered" 51 . Individual treaty interpretation also occurs when national courts interpretinternational treaties in their judgements.50Lord McNair, supra note 12 at 345-350.51 "Commentary of the ILC on Article 2 I d of the 1966 draft of the Vienna Convention onthe Law of Treaties", Yearbook of the International Law Commission 1966, vol. II (New York1966) at 189ff.22II. Rules for interpretation in international lawA. Rules before the Vienna Convention on the Law of TreatiesBeginning with Grotius, successive generations of writers, arbitrators and judgeselaborated rules for interpretation of treaties. Most of those rules were borrowed from theprivate law of contract. The borrowing even reached back to the Greek and Roman legal system.Two of the basic rules of treaty interpretation were known to the Greeks" and theRomans". Grotius54 introduced those to the modern world in Chapter XVI of his book "DeJure Belli ac Pacis": words are to be understood in their ordinary sense 55 , and technical termsare to be explained according to their technical use. Both rules found their way into theVienna Convention as both are frequently applied by international courts and tribunals.Rules for treaty interpretation were part of international customary law before beingcodified in the Vienna Convention on the Law of Treaties. Fitzmaurice" studied the decisionsof the International Court of Justice and classified five principles in his analysis:"Horaz, Art of Poetry, 72."Procopius, Vandalic War, I [I. XI.4] 286.ME. Vattel, supra note 10, devotes Chapter XVII to the subject "of the interpretation oftreaties". This is an enlarged copied version of the original of Grotius.55H. Grotius, De jure belli ac pacis libri tres, trans. F. Kelsey, (New York: OceanPublications, 1964) at 409.56Ibid. at 410."Sir G. Fitzmaurice, supra note 16.231. Actuality/textual interpretation)2. natural or ordinary meaning3. Interpretation of the treaty as a whole4. Effectiveness (ut res magic valeat)5. subsequent practice.Those principles will be discussed below under the section on non-codified rules ofinterpretation. As the Vienna Convention reflects the former rules of customary internationallaw, only one major issue concerning the rules of interpretation will be discussed below." Thisissue gave ground for a controversy between the scholars' and the courts. The question waswhether only the text or, in addition to the text, the "travaux preparatoires" should be used asmeans for interpretation. In addition the question dealt with the problem of whether thispreparatory work had only a secondary function, i.e. to correct a reached conclusion whichappears to be unacceptable or to explain terms which are still ambiguous after interpretation.'The compromise which was reached in the Vienna Convention is still under debate and has givenrise to the possibility of future amendments to the Vienna Convention'. The Permanent"For the situation concerning the interpretation of treaties authenticated in more than onelanguage before the adoption of the Vienna Convention, see Lord McNair, supra note 12 at 432-435."Lord McNair, supra note 12 at 411-423.""The interpretation of obscure terms in a treaty is a matter of fact, as to which extrinsicevidence may be taken for the purpose of explaining objective obscurity." J. Moore, ed., ADigest of International Law as embodied in diplomatic discussions, treaties and otherinternational agreements. international awards, the decisions of municipal courts, and the writingof jurists, and especially in documents, published and unpublished, issued by presidents andsecretaries of state of the United States, the opinions of attorneys-general, and the decisions ofcourts federal and state (Washington: Government Printing Office, 1906), at 252.61m. Ris, "Treaty Interpretation and ICJ Recourse to Travaux preparatoires: Towards aProposed Amendment of Article 31 and 32 of the Vienna Convention on the Law of Treaties",(1991) 14 Boston College International and Comparative Law Review 111. See Chapter Two,II, B, 4, below, for a discussion of future amendments.24International Court of Justice had a bias against including the preparatory work in its decisionsat al162 . A similar view was expressed in the Lotus case: "...(it) must recall in this connectionwhat it has said in some of its preceding judgements and opinions, namely, that there is nooccasion to have regard to preparatory work if the text of a convention is sufficiently clear initself'. Curiously the Court did not follow its own rule : "...the preparatory work fullyconfirms the conclusion at which the Court has now arrived'.In general, the situation before the drafting of the Convention was very confusing as the"Permanent Court has formulated relatively few rules of interpretation, and that it hasusually stated them with such qualifications as to leave itself completely free to applythem or not accordingly as the circumstances and evidence in a particular case mayrequire".However, the jurisprudence of international courts before the coming into force of theVienna Convention, can be seen as the foundation of the Vienna Convention itself.B. Codified rules in the Vienna Convention on the Law of TreatiesThe Vienna Convention is a unique treaty instrument. Unlike other internationalagreements that regulate States' behaviour in a particular field of international relations such as62 "there is no occasion to have regard to preparatory work if the text of a convention issufficiently clear in itself", Employment of Women during the Night Case  (1932), P.C.I.J.Series A/B, No.50 at 378.'Harvard Law School: "Draft of the Law of Treaties" (1935 Supplement) 29 A.J.I.L. 962,discussing the Lotus Case.'Jurisdiction of the European Commission of the Danube (1927), P.C.J.I. Series B No.14at 28.'Harvard Law School, "Law of Treaties" (1935 Supplement), 29 A.J.I.L. 943.25human rights, this treaty is designed to govern all other treaties. Since treaties are today theprimary source of international obligations' the rules of the law of treaties create thefundamental framework within which this regulation operates.Section Three of the Vienna Convention is devoted to Treaty Interpretation. Article 31and 32 deal entirely with treaty interpretation. Article 31 prevails over 32. Article 33 deals witha special problem in treaty interpretation. Section 1 and 2 of Article 33 are occupied withdefining how to determine the authentic language of a treaty; it would have made more senseto include these provisions under the section of treaty conclusion. Sections 3 and 4 of Article33 are rules for interpretation. However, their value in relation to the real problem of severalauthentic languages is limited, as an example below will show.1. Article 31 General rule of interpretation"1.A treaty shall be interpreted in good faith in accordance with the ordinary meaningto be given to the terms of treaty in their context and in the light of its object andpurpose".Article 38 of the Statute of the International Court of Justice is regarded as the mostauthoritative statement on sources of international law:1. The Court, whose function is to decide in accordance with international law such disputes asare submitted to it, shall apply:(a) international conventions, whether general or particular, establishing rules expresslyrecognized by the contesting States;(b) international custom, as evidence of general practice accepted as law;(c) the general principles of law recognized by civilised nations;(d) subject to the provisions of Article 59, judicial decisions and the teachings of the mosthighly qualified publicists of the various nations, as subsidiary means for the determination ofrules of law.2. This provision shall not prejudice the power of the Court to decided a case ex aequo et bono,if the parties agree thereto.26The Vienna Convention is based on the idea that there is one basic rule for theinterpretation of international treaties. This rule may be described as that of "general consent".Having only one basic rule is important for two reasons. First of all, this means that theConvention does not distinguish between "law making treaties" and "treaty contracts". Thismight be best illustrated by an example of the national legal system, where different set of rulesfor the interpretation of different types of law can be found quite often. For example, theCanadian legal system, deriving from the common law, distinguishes between statutoryinterpretation and stare decisis/precedent67 .Secondly, as the Convention accepts only one general rule, we face the problem ofwhether the Convention wants to bring further rules into play in a certain order. Through theuse of the singular in the title, ("General rule of interpretation"), it is indicated that Article 31is the only rule for interpretation.The rule imposes first of all the duty to obey the principle of good faith ("bona fides").This principle underlies the most fundamental of all the norms of treaty law, the rule "pacta suntservanda". Since every treaty is binding upon the parties, the provisions of it must be performedby them in good faith. If good faith is required of the parties in relation to the observance of thetreaties, "logic demands"" that good faith be applied to the interpretation of treaties."Ordinary meaning', the next element of the rule, does not necessarily result from a67G. Gall, supra note 7 at 272 and 310."Sir I. Sinclair, supra note 15 at 119."The principle of ordinary meaning can be seen very clearly in the Advisory OpinionConstitution of the Maritime Safety Committee of the Inter-Governmental Maritime ConsultativeOrganisation, [1960] I. C.J. Rep. 150. Under dispute was the meaning of the words "largest shipowning nations".27"pure grammatical analysis'. The true meaning of a text has to be arrived at by taking intoaccount all the consequences which normally and reasonably flow from the text'. Sinclairpoints out that there is "no such thing as an abstract ordinary meaning of a phrase, divorcedfrom the place which that phrase occupies in the text to be interpreted'.Section 4 of Article 31 has to be read together with Section 1, if the connection betweenordinary and special meaning is to be understood:"4. A special meaning shall be given to a term if it is established that the parties sointend."Both sections read together establish the rule that a special meaning prevails over theordinary meaning. However, whether a term has a special meaning is essentially a question ofburden of proof, "which lies with the party which is trying to invoke the special meaning of theterm" 73 . The standard of proof appears to be very high since a derogation from the ordinarymeaning of the term is involved. Hence it cannot be enough that one party only uses thisparticular term in a particular way74 ."2. The context for the purpose of the interpretation of a treaty shall comprise, inaddition to the text, including its preamble and annexes:'Sir I. Sinclair, supra note 15 at 121.71 11 ne s'agit donc pas d'un sens ordinaire abstrait, mais d'un sens ordinaire concret qui nepeut etre discerne que par l'examen du terme en question dans le contexte de ce terme et a lalumiere du but et de l'objet du traite. C'est ce sens qui peut etre retenu dans le processus del'interpretation du traite." M. Yassen, "L'Interpretation des Traites d'apres la Convention deVienne sur le Droit des Traites" (1976) 151 Recueil des Cours 20."Sir I. Sinclair, supra note 15 at 121.'Reports of the Commission to the General Assembly "Convention on the Law of Treaties"Yearbook of the International Law Commission 1966  at 222.'Classic example is the Eastern Greenland Case (1933), P.C.I.J. Ser. A/B No.53 at 49.28(a) any agreement relating to the treaty which was made between all the parties inconnexion with the conclusion of the treaty;(b) any instrument which was made by one or more parties in connexion with theconclusion of the treaty and accepted by the other parties as an instrument related to thetreaty."As shown above, if particular words and phrases in a treaty are ambiguous, theirconstruction should be governed by the general object of the treaty, and by the context.'The text of the treaty must be read as a whole. Concentration on one term or just oneprovision appears to be absurd. The preamble' of a treaty may assist in determining the objectand the purpose of the treaty. The European Court of Human Rights refers to the preamble ofthe Convention quite often' particularly when it uses its dynamic method of interpretation, inorder to give some foundation to its judgements."3. There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretation of the treatyor the application of its provision.(b) any subsequent practice in the application of the treaty which establishes theagreement of the parties regarding its interpretation;(c) any relevant rules of international law applicable in the relations between the parties."Examples of subsequent interpretative agreements are rare'. However, there is a wide'Arbitral Tribunal for German External Debts, The Government of Belgium et al. v. TheGovernment of the Federal Republic of Germany Case, 19 I.L.M. 1357, for "context" andNicaragua v. United States, [1986]^Rep. 270, for "object and purpose".767. Wetter, The International Arbitral Process: Public and Private (Dobbs Ferry N.Y.:Oceana Publications, 1979), vol.1 at 276, for the Beagle Channel Arbitration referring to thepreamble of a 1881 treaty.'For example in the Golder Case, supra note 25, when coming to the conclusion that article6 (1) of the Convention guarantees a right to fair and public hearing in civil and criminalproceedings, involving a right of access to the courts, and therefore of access to legal advice.78 "Ce procede n'est pas toujour facile a manier, it implique des negociations plus ou moinsdelicates et exige de part et d'autre un desir d'entente, meme au prix d'un certain sacrifice,l'ambiguite etant souvant dans l'interet de l'une ou l'autre des parties. De plus, ce procede29variety of state practice and case law which gives a strong indication that subsequent statepractice is an element to be taken into account in interpreting a treaty'. A good example ofsubsequent practice is the practice of the Security Council in relation to the interpretation ofArticle 27 (3) of the United Nations Charter, which requires that decisions of the SecurityCouncil on all matters shall be made by an affirmative vote of nine members including theconcurring votes of the permanent members. From 1946 onwards, an unvarying practice hasbeen adopted within the Security Council whereby a voluntary abstention by a permanentmember has been treated as the equivalent of a concurring vote within the meaning of thisprovision, in the sense that it has not been regarded as preventing the adoption of a decisionwhich has otherwise attracted the required arithmetical majority of affirmatives votes".Finally, as discussed above, every treaty provision must be read not only in its owncontext, but in the wider context of general international law, conventional and customary.However, this requirement raises the question of whether a treaty provision is to be interpretedin light of the rules of the international law in force at the time of the conclusion of the treatyor those in force at the time of the interpretation. Since a treaty may remain in force for manyyears, and since international law may evolve and develop during the period when the treaty isin force, the interpreter must take into account this evolution. This argument leads to thedevient plus complique quand it s'agit d'un traite multilateral". M. Yassen, supra note 71 at 44.79"If there were any ambiguity, the Court might, for the purpose of arriving at the truemeaning, consider the action which has been taken under the treaty". Jaworzina Case (1923)P.C.I.J. Ser. B, No.8 at 37."C. Stavropoulos, "The Practice of Voluntary Abstentions by Permanent Members of theSecurity Council under Article 27 Paragraph 3 of the Charter of the United Nations", (1967) 61A.J.I.L. 737-52.30dynamic interpretation method, which has been discussed above.2. Article 32 Supplementary means of interpretation"Recourse may be had to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order toconfirm the meaning resulting from the application of article 31, or to determine themeaning when the interpretation according to article 31:(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable."Where the interpretation according to the provisions of Article 31 needs confirmation ordetermination because the meaning remaining ambiguous or obscure, or leads to a manifestlyabsurd or unreasonable result, recourse may be made to supplementary means of interpretationunder Article 32. As Articles 31 prevails over Article 32, one of the two provisions of Article32 (a) or (b) have to fulfilled before its implementation can be considered.The circumstances of the conclusion may have some value in emphasising the need forthe interpreter to bear in mind the historical background against which the treaty has beennegotiated". It may also be necessary to take into account the individual attitudes of the parties,their economic, political and social conditions, "when seeking to determine the reality of thesituation which the parties were wishing to regulate by the means of the treaty"'Preparatory work is a wide term. The attempts made to clarify the term are discussed""I1 s'agit de cadre historique que forme l'ensemble des evenements qui ont porte les partiesa conclure le traite pour maintenir ou confirmer le statu quo ou apporter un changement qu'unenouvelle conjuncture necessite". M. Yassen, supra note 71 at 48."Sir I. Sinclair, supra note 15 at 141.31below. The rule itself is much wider than the one that was accepted as customary internationallaw before the coming into force of the Vienna Convention. The Permanent International Courtof Justice took the view that the travaux preparatoires of certain provisions could only be takeninto account when the states appearing before the Court had participated in the preparatoryconference".3. Article 33 Interpretation of treaties authenticated in two or more languages"1. When a treaty has been authenticated in two or more languages, the text is equallyauthoritative in each language, unless the treaty provides or the parties agree that, in caseof divergence, a particular text shall prevail.2. A version of the treaty in a language other than one of those in which the text wasauthenticated shall be considered an authentic text only if the treaty so provides or theparties so agree.3. The terms of the treaty are presumed to have the same meaning in each authentic text.4. Except where a particular text prevails in accordance with paragraph 1, when acomparison of the authentic texts discloses a difference in meaning which the applicationof articles 31 and 32 does not remove, the meaning which best reconciles the texts,having regard to the object and purpose of the treaty, shall be adopted."In the case of multilateral treaties the state practice in regard to the application ofinternational law varies. For example, Article 111 of the Charter of the United Nations providesthat the Chinese, French, Russian, English and Spanish texts are equally authentic. However,the working languages since the San Francisco Conference have been English and French.Therefore it is not unreasonable to assume that, when the Charter is being interpreted, greaterweight should be given to the texts in those languages than others. The jurisprudence of the"River Oder Case (1929), P.C.I.J. Ser. A, No. 23 at 19.Young Loan Case, (1980) 59 International Law Reports 495.Sir I. Sinclair, supra note 15 at 141.32International Court of Justice seems to confirm this argument.In fact, Article 33 is considered one of the failures of the Vienna Convention. It isbelieved to be located in the wrong section and is of not much help as a rule for interpretation.Located in Section 3 under the title "Interpretation of Treaties", Article 33 primarily deals insections 1 and 2 with the questions how to determine an authentic language. Arguably, thesesections should have been placed under the section of treaty conclusion. Sections 3 and 4 ofArticle 33 are rules of interpretation. However, their use is limited; to solve problems whichcome up in this context, adjudicative bodies will have to have recourse to rules derived fromcustomary international law. This may be shown by the following example. The African Charterof Human and Peoples' Rights" has two authentic languages, French and English. Article 55(2) has the provision that the complaint of an individual needs -in the English version- "a simplemajority" or -in the French version- "majorite absolue" of the members of the Commission, inorder to be considered. According to Article 33 (3) both texts are presumed to have the samemeaning. Logically this cannot be the case, as the French version needs at least six votes infavour, and the English version just one, when everybody else abstains. Before the coming intoforce of the Vienna Convention it was a rule of customary international law that in case of adivergence between two equally authentic languages a restrictive interpretation has to beapplied". Applying Article 33 (4) requires that one looks at the object and purpose of the"Conditions of Admission of a State to Membership in the United Nations (Article 4 of theCharter, [1948] I.C.J. Rep. 62-63.85(1982) 21 I.L.M. 59.86Mavrommatis Palestine Concession Case (1926), P.C.I.J. Ser. A, No.2, at 19 andYoung Loan Case, supra note 83 at 495.33treaty. The object and purpose of the Charter is, no doubt the protection of individuals. But thisdoes not necessarily imply that the French version should be contradicted. The African Charterbeing a human rights treaty, demands that the African Commission will have to fall back toother rules outside of the Vienna Convention, such as "choosing the most favourable meaningof a term for the individual".4. Outlook for possible changes regarding codification of rulesThere are two recent developments in the field of codified law on interpretation. First,there is a draft for a Vienna Convention on the Law of Treaties between States and InternationalOrganizations or between International Organizations". The text for this Convention wasadopted by a legal codification conference under the auspices of the United Nations" on March20, 198689 .There is unlikely to be any effect on treaty interpretation, as the Articles concerningtreaty interpretation are the same as in the Vienna Convention on the Law of Treaties. Even thenumbering was kept the same.Secondly, amendments to the existing Articles 31 and 32 have been proposed so as toclarify the expression "travaux preparatoiress", thus making the jurisprudence of theInternational Courts more predictable and more consistent. The possible amendments will not"G. Gaja, "A new Vienna Convention on Treaties between States and InternationalOrganizations or between International Organizations: a critical commentary" 58 BritishYearbook of International Law 1987  at 253-269."Recommended by the Resolution of the General Assembly 40/76."Text in 25 I.L.M. 543 (1986).34have much effect. Travaux preparatoires is quite often used for interpretation of human rightstreaties. However, the preparatory work is used less for the interpretation of the substantiveparts of the agreements, but more often for the interpretation of procedural questions. TheCommittee against Torture, for example, uses the travaux preparatoires to point out to the stateconcerned that it has jurisdiction under Article 20 of the Convention, when jurisdiction is deniedby that state.'B. Non-codified rulesSeveral rules were used in international adjudication and arbitration which did not becomepart of the Vienna Convention. This was due to the fact that some of these rules could not beregarded as part of the international customary law as they either lacked world wide recognitionor were not being used constantly. There are two elements, which are recognized to determinea customary international rule. First of all, the rule must be "opinio iuris", secondly it must havebeen consistent in general practice.In addition, some of these "rules" actually do not belong under the category of rules ofinterpretation as they serve a different purpose.1. "contra proferentem"90Oral information from Prof. Burns, UBC Faculty of Law, Member of the United NationsCommittee against Torture and other cruel, inhumane or degrading treatment or punishment, inclass October 26, 1992.35If a sentence is ambiguous, the meaning unfavourable for that party who proposed theambiguous wording shall prevail'. This seems to be fair, however it is not. Treaties are ingeneral mutual agreements, thus both sides have the right to agree or to disagree with anyproposition'. As long as no understanding or compromise is reached, no treaty will beconcluded. Thus an ambiguous meaning is either in the interest of both parties or a sign of baddiplomatic craftsmanship on one side. In addition, an ambiguous meaning in favour of one partycould destroy the architecture of reciprocality of a treaty. Furthermore it is very difficult toprove who proposed an ambiguous meaning first, as negotiations tend to be held behind closeddoors and not every proposal appears in the records. Even if one side cannot be blamed at allfor the ambiguous meaning" and it is evident that the other side did either voluntarily orinvoluntarily inflict this ambiguous proposition "contra bonam fidem", the application of "contraproferentem" is still no rule of interpretation. Since interpretation ends when the adjudicatorybody rules that the provision is ambiguous, the decision how to proceed from here on is the91't ..there is a familiar rule for the construction of instruments that, where they are foundto be ambiguous, they should be taken contra proferentem." Case concerning the Payment inGold of the Brazilian Federal Loans Issued in France (1925), P.C.I.J. Ser. A, No. 21 at 114."Thus Wharton, supra note 59 at 252 concluded that in a case, "...[where] two meaningsare admissible,... [the one is] to be preferred which the party proposing the clause knew at thetime to be that which was held by the party accepting it.""G. H. Hackworth, Digest of International Law (Washington D.C. :U.S. GovernmentPrinting Office, 1943) at 243. The Romanian-German Arbitration Court ruled in theWeitzenhoffer v. Germany Case ADPILC 1925-1926 Case No.278 at 367: "...les clausesambigues du Traite devaient etre interpretees contre leurs redacteurs." The provisions of thePeace Treaty of Versailles have to be interpreted to the disadvantage of the Allied powers, asthey dictated the treaty provisions.36application of a rule of punishment. Applying now the rule "contra proferentem" can besuitable, according to the circumstances, while keeping in mind the arguments mentioned above.2. "in dubio mitius"In case of ambiguity, the meaning should be preferred which is less onerous to theobligated party, causing less interference with its personal and territorial supremacy.Sovereignty of states is one of the most important principles of international law.Therefore, reasonableness and consistency is applied at customary international law as one ofthe rules of interpretation. Since it is to be assumed that states entering into a treaty are as a ruleunwilling to limit their sovereignty, say in the most express terms, ambiguous provisions shouldbe given a meaning which is least restrictive upon a party's sovereignty or which imposes theleast onerous obligation. It appears to have some justification, as it is logical that any countrywhich intends to limit its sovereignty, will use clear and proper terminology to do so. However,this rule was not included in the Vienna Convention. This is due to the fact that the ViennaConvention stresses the objective approach more than the subjective. Asking whether the stateparty wanted to limit its sovereignty through undertaking particular treaty obligations involvesan inquiry into the intention of the treaty partners at the time of the conclusion of the treaties.'According to the Vienna Convention on the Law of Treaties, the interpretation of treatiesand the punishment for the breach of a treaty provision are being dealt with differently: Thebreach of a treaty may lead to its suspension in whole or in part, Article 60. This punishmentis totally useless for human rights treaties due to their nature of protecting individuals againstthe treaty partners.373. "ut res magis valeat quam pereat"Treaties are concluded for a certain reason. Interpretation of a treaty can lead to a resultwhich is totally opposite to the treaty's purpose. Therefore, a rule was established that nointerpretation should ever go against a treaty's purpose. However according to McNair 95 "therule of effectiveness must mean something more than the duty of a tribunal to give effect to atreaty". A typical example can be found in the Advisory Opinion of the International Court ofJustice on the Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania'."The principle of interpretation expressed in the maxim, ut res magis valeat quam pereat,often referred to as the rule of effectiveness, cannot justify the Court in attributing to theprovisions for the settlement of disputes in the Peace Treaties a meaning which, as statedabove, would be contrary to their letter and spirit."The value of this rule has been questioned by many scholars. Lord McNair' forexample pointed out "it is [the] duty of a tribunal to ascertain that purpose and do its best to giveeffect to it, unless there is something in the language used by the parties which precludes thetribunal from doing so".According to the Vienna Convention, this rule is unnecessary, as in such cases Article31 provides recourse to the subsidiary means of interpretation pursuant to Article 32.4. "friendly to international law"95Lord McNair, supra note 12 at 383.'Interpretation of Peace Treaties with Bulgaria. Hungary and Romania, Advisory Opinion,[1950] I.C.J. Rep. at 229.'Lord McNair, supra note 12 at 385.38Treaties must be applied and interpreted against the background of the general principlesof international law. Their very existence and validity rest on one of the earliest and mostfundamental of those principles -pacta sunt servanda. 98Treaty provisions are to be interpreted as being "friendly to international law" (suitable,fit, in accordance with). That is, the interpretation shall not interfere with any given specificprinciple of international law". In case of doubt, the effectiveness of such international legalprovisions shall not be contravened'. If such an interpretation can not be brought intoaccordance with the treaty text a restrictive interpretation is to be undertaken, according to thisrule.International law is a certain category of law, where reciprocity prevails. Customaryelements play a much more vital role than in other fields of law. Therefore, according to thisrule, any interpretation of a treaty must comply with international law. However, it isunderstood today that there are treaties which are not reciprocal and that due to the emergingcodification of international law, customary elements play a less and less vital role. Finally, itseems to be questionable whether it is so easy to draw a line where international law begins andnational law ends. A good example for this problem is the disputed nature of EuropeanCommunity law. Therefore, this rule did not become part of the Vienna Convention."This principle is today codified in the Vienna Convention, Article 26:Every treaty in force is binding upon the parties to it and must be performed by them in goodfaith.For example: Case concerning Right of Passage over Indian Territory,  [1957] I.C.J. Rep.at 124."Ibid. at 141.395. Further rulesSeveral so-called rules were either used only seldom in international adjudication or arelimited to certain legal systems and therefore do not qualify as international customary law withgeneral recognition.a. "cy-pres""The rule of cy-pres is a rule for construction of instruments in equity, by which theintention of the parties is carried out as near as may be when it would be impossible orillegal to give it literal effect. " 101In the case "The Amiable Isabella" it was ruled however that: "The doctrine ofperformance cy-pres, so just and appropriate in the civil concerns of the private persons, belongsnot to the solemn compacts of nations, so far as judicial tribunals are called upon to interpretthem. " 1°2b. "prohibitory versus permissive"In the case of doubt a prohibitory clause has the preference over a permissive clause.''Black's Law Dictionary, 6th ed., (St. Paul, Minnesota: West Publishing Co., 1990) at387.1°2J. B. Moore, supra note 60, at 251.103T. D. Woolsey, Introduction to the study of international law. Designed as an aid inteaching, and in historical studies,  6th ed. (New York: C. Scribner's and Sons, 1889) at 113.40This rule corresponds with the rule "in dubio mitius" to a certain extent. Therefore the abovediscussion is valid for this clause too.c. "expressio unius est exclusio alterius"If one expresses one thing that means any other meaning is excluded. This rule has beenbeing called "a rule of both law and logic and applicable to the construction of treaties as wellas municipal statutes and contracts'. A direct application of this rule can be found in the AbuDhabi Oil case".d. "eiusdem generis"'If general words follow or sometimes precede special words, the former are beingrestricted within a narrower "genus" than they might indicate if they were standing alone. Therule is however limited to the anglo-american legal system. Lord McNair stated that "[t]his rulecannot be described as a canon of construction, and there is no presumption in favour of itsapplication."'"G. H. Hackworth, supra note 93, at 232.'Abu Dhabi Oil Case, (1951) 18 International Law Reports at 144ff.'Other expressions to describe this doctrine are: "noscitur a sociis" and "copulatioverborum indicat acceptionem in eiodem sensu".'Lord McNair, supra note 12 at 393.41III. ConclusionArticles 31 to 33 of the Convention constitute a general expression of the principles ofcustomary international law relating to treaty interpretation. However, some rules wereexcluded. By placing emphasis on the key elements of the treaty interpretation, and on therelationship between those elements, the Convention rules establish a set of guidelines which arenot only firmly grounded in antecedent State practice and international case law but which serveto indicate to the would-be interpreter the relative weight which should be attributed to each ofthose elements'.The application of the rules results in a certain uniformity of international court decisionsand still leaves those courts with a freedom of choice.Nevertheless, any true interpretation of a treaty in international law will have to take intoaccount all aspects of the agreement, from the words employed to the intention of the parties andthe aims of the particular document. It is not possible to entirely exclude any of thesecomponents.'I. Sinclair, supra note 15 at 153.42CHAPTER THREE: International human rights protectionThe definition of human rights usually includes two elements. Number one is adescription of the rights, thus giving some normative input into the abstract term human rights.This "normative input" can be classified into two approaches. The first approach, commonlyreferred to as the "Western approach", sees human rights as individual rights. The secondapproach, common to Asian countries and formerly to the socialist world, regards human rightsprimarily as being collective rights. The second element of a human rights definition usuallydeals with the question of the source of human rights.International and regional human rights documents so far have regarded the origin ofthose rights as being a natural right. "Human rights are linked in history to the idea of 'naturalrights'. A natural right is a right held by the virtue of one's nature; Those and otherdescriptions are attempts to give a foundation to law. It is remarkable that human rights are inthe end never defined by positive law, but through recourse to some higher nature."Human rights are a special class of rights, the rights that one has simply because oneis a human being. They are thus moral rights of highest order."' A human right has beendefined as "something due a person in social context, because of his membership in the class ofhumanity, because he is a human being 1,111.Machan, Human Rights and Human Liberties: a radical reconsideration of theAmerican political tradition (Chicago: Nelson Hall, 1975) at 50.110J. Donnelly, Universal Human Rights in Theory and Practice,(Ithaka N.Y.: CornellUniversity Press, 1989) at 12.111T. McCann, supra note 109 at 50-51.43As expressed in one Covenant, "[H]uman rights derive from the inherent dignity of thehuman person. 12" The Western idea of human rights is based on an understanding of humandignity that sees each person as being equally valuable, equipped with some inalienable rightsthat can be claimed against anyone, even against society. Through several internationalinstruments, this concept of human rights has become a world wide approach. The UnitedNations, when adopting most of those instruments, were dominated by states at that time, whichfollowed the Western legal approach. Therefore this concept is still disputed by several non-western conceptions', especially of Asian and Arabic origin.It is important to note that human rights instruments protect against the governmentswhich are state parties. They do not however, protect against insurgents. Protected areindividuals, however not insurgents or other combattants. They are protected through the clusterof the Geneva Conventions and other elements of the "Law of Wars".I. International treaties, covenants and declarationsShaped through the impression of the atrocities committed during the second World War,the Charter of the United Nations 114 refers in four substantive Articles and in its Preamble' 15to human rights and fundamental freedoms as a basis for international relations. The General'Preamble International Covenant on Civil and Political Rights, 19 December 1966, (1966)999 U.N.T.S. 171.113J. Donelly, supra note 110 at 49: Non-Western Concepts of Law.114UN Conference on International Organizations Documents (1945), vol.XV at 335.115UN-Charter, Articles 1,13,55 and 76.44Assembly adopted the Universal Declaration of the Rights of Man on December 10, 1948 116 .This declaration contains the basis for all human rights instruments today. Arguably, when it wasadopted, the General Assembly did not have the legislative power to do so. Today, however,the principles of the Universal Declaration have become, in the view of many scholars' andin the view of the International Court of Justice', part of customary international law.Through two international documents, The International Covenant on Civil and PoliticalRights' and the International Covenant on Economic, Social and Cultural Rights'', theprinciples became "statute" law for the state parties of the respective Covenants. The first of thetwo is equipped with a Committee which is obliged to ensure the respect of those rightsmentioned in the Covenant. Individual complaints , however, are only possible upon theratification of an Optional Protocol'''. The second Covenant had been recently equipped witha similar Committee'''. Within the United Nations, the Economic and Social Counsel116UN GAOR, 3rd Sess. Res. (1948), part. I at 71.'Sir H. Waldock, "The political background and historical development of the EuropeanConvention on Human Rights" (1965 Supplement) 14 International and Comparative LawQuarterly 15, with further references."'Namibia Case, [1971] I.C.J. Rep. 16.119999 U.N.T.S. 171. In effect since August 19, 1976.120993 U.N.T.S. 3. Adopted December 19, 1966, in force since January 3, 1976.121999 U.N.T.S. 302.ine predecessors of the Committee, established by the Economic and Social Council(ECOSOC), the Sessional Working Group (1979-1982) and the Sessional Working Group ofGovernmental Experts (1983-1986) had only monitoring function. The Committee is formallyan expert body and therefore not mentioned in the Covenant. It held its first session in 1987.S. Leckie, "An Overview and Appraisal of the fifth session of the UN Committee on Economic,Social and Cultural Rights". (1991) 13 Human Rights Quarterly, 545-572.45(ECOSOC) is occupied with human rights' and has created a secondary organ to ensurethem: the Human Rights Commission'. The enforcement of human rights is intended to beachieved through several procedures, which are named after the ECOSOC resolution which setthem up125 .Meanwhile, a large number of different specialized Conventions' have been adopted,some of them equipped with a Committee as an investigatory and quasi-judicial organ. Thisdiversification has some dangers, as individuals might not be aware of their existence or addressthe wrong body; moreover, it becomes more and more difficult to maintain a consistent approachto interpretation 127 .II. Regional instruments to protect human rights"P. Alston, "Out of the Abyss: The Challenges Confronting the New UN Committee onEconomic, Social and Cultural Rights". (1987) 9 Human Rights Quarterly, 332.'According to Articles 55,56,60 and 62.'Article 68.125728 F, 1235 (XLII) public and 1503 (XLVIII) non-public."Such as the International Covenant on the Abolishment of all Forms of RacialDiscrimination, 7 March 1966, 660 U.N.T.S. 195.A complete, up to date list of all documents dealing with the protection of human rights can befound in B. Simma, Menschenrechtsvertraege (Muenchen: Beck, 1992).'For the Americas: T. McCann, "Toward uniform interpretation of human rights law"(1983) 6 Fordham International Law Journal 310-365.128Re-g- ional human rights protection mechanisms can be found on three continents so far:Europe, America and Africa. Human rights protection in Asia is still in its initial stages. Dueto the vast differences among the cultures and political systems in the countries we refer to asbeing situated on the Asian Continent, no noteworthy inter-governmental initiative to protecthuman rights has been taken, with the exception of the below mentioned Arab initiative. The46A. EuropeEuropean human rights protection is based upon the European Convention for theProtection of Human Rights and Fundamental Freedoms'''. Today, all western Europeannations are state parties to this Convention, and a number of former socialist countries haveapplied for membership or are already parties. The substantive part of the Convention has beenaltered several times by additional protocols. Some of those protocols serve a different purposeas they do not alter the Convention, but enlarge the rights of the individual, such as providingfor a procedure for the individual complaint. All Western European Nations are state parties tothis optional protocol, though some of them have made severe reservations' to limit the treatypowers. The Convention provides in Articles 2 to 16 civil and political rights and freedomssimilar to those set out in the Universal Declaration. Economic and social rights are covered bya special European Social Charter 131 . The Convention has three major organs: theCommission 132 , backed by a Secretariat', which considers the admissibility of a complaint;United Nations documents to protect human rights were only ratified by a very small numberof Asian states. For example the Convention against Torture has only been ratified by thePhilippines. The action taken so far is limited to non-governmental organizations.129213 U.N.T.S. 221. Adopted November 4, 1950, in force since September 3, 1953, asamended by the Additional Protocols 3, 5, 8 and 9, whereby 9 is not yet in effect.'Such as Turkey, which equals a total opting out of the individual complaint, 1985European Yearbook on Human Rights at 30.' 3 '529 U.N.T.S. 89. Amended in 1992: (1992) 31 I.L.M. 155.132Articles 19 to 37. Rules of Procedure were adopted by the Commission.133Article 37.47the Council of Ministers, who tries to settle disputes and is charged with enforcing thejudgements of the Court; and the European Court of Human Rights'. Two actions can betaken under the Convention, a state complaint which is mandatory upon ratification of theConvention itself and an individual complaint which requires the ratification of an optionalprotocol'''. If the Commission considers the complaint to be admissible and does not choseto address the Council right away, the complaint is submitted to the Court. Rules forinterpretation for the Court are to be found in Articles 17, 18 and 60. Between 1955 and 1985the Commission has received 11891 applications, of which it has held more than 450 admissible.Most of the complaints failed to meet the requirement of the exhaustion of local remedies. TheCourt has rendered so far 237 judgements" so far. The major problem today is theoverwhelming number of complaints, which will only worsen with the entries of the formersocialist countries. One German law professor' once summed up the situation as follows:"The Convention suffocates from its own success".The Helsinki final document" is not an international treaty of binding character. It ispresumed to be a "gentlemens' agreement'. However, it had some impact on the beginning'Articles 38 to 56."'Adopted March 20, 1952."As of May 12, 1992.'Prof. Dr. Bruno Simma in class 1990."Conference on Security and Co-operation in Europe, 1. August 1975, (1975) 14 I.L.M.1293."As all states present agreed not to record the document with the United Nations TreatySeries, required by Article 102(1) of the UN Charter. A state may only claim to be bound bya treaty if the treaty is registered, Article 102(2) UN-Charter.48of the downfall of the Communist Empire, as Hungary triggered the mass escape of Germansduring the summer of 1989, when it declared that it could not deny them the right to leaveHungary into Austria, being bound by the principles of the Helsinki final document. 14°B. AfricaThe basic document for inter-African relations is the Charter of the Organization ofAfrican Unity (0AU) 141 . This document reaffirms the principles of the UN Charter and theUniversal Declaration of Human Rights. The OAU has maintained an ambivalent attitudetowards the suppression of human rights in a number of independent African States, emphasizingthe principle of noninterference in the internal affairs of member states at the expense of certainother principles, particulary the customary law principle of respect for human rights. 142Following pressure from the United Nations, the African Charter of Human Rights andof Peoples' Rights143 was unanimously adopted on June 26, 1981, by the 18th Assembly of thei4oHungary_ later became the first former communist country to join the EuropeanConvention.141Charter of the Organization of African Unity, adopted May 23, 1963. (1963) 479U.N.T.S. 39. (1963) 2 I.L.M. 766.142 "The OAU is not a tribunal which could sit in judgement on any member state's internalaffairs." Sekou Toure, African Research Bulletin (1979), 5329 B.'In force since October 21, 1986, three month after the 26th ratification was received bythe Secretary General of the OAU, (Article 63 (3)); (1986) 7 HRLJ 403. (1982) 21 I.L.M. 58.Banjul Charter was the title finally agreed upon in honour of the drafting history in 1980 and1981 and in order to avoid confusing it with the 1963 Charter of African Unity. However, theoriginal title continues to be used, even within OAU circles, see R. Gittleman, "The AfricanCharter on Human and Peoples' Rights: a Legal Analysis" (1982) 22 Virginia Journal ofInternational Law 667.49Heads of State and Government of the OAU, held in Nairobi. The Charter is divided into threemajor parts: Articles 1-26 deal with the civil, political, social and economic rights, Articles 27-29 lay out the duties for individuals as well as for states and Art. 30-44 provide for an elevenmember Commission, which is backed by a Secretariat (Article 41). The Commission is chargedwith processing information, conducting investigations, making recommendations andinterpretations. The rules of procedure are contained in Articles 45-59. In addition, theCommission adopted a document containing specific rules of procedure'. Two differentactions can be taken, either by communication between the states (Articles 47-48) or byaddressing the Commission right away (Article 49). The other action is a complaint by anindividual (or by any other nongovernmental entity) (Article 55-59). In addition, state partieshave to supply state reports (Article 62) on a regular basis. Interpretation is guided by Articles60 and 61.There is no Court, as the drafters of the African Charter concluded that formaladversarial procedures common to Western legal systems were inappropriate to African customsand tradition, which emphasize conciliation rather than judicial settlements of dispute'. Thisargument is widely under disputes, as Africa does not have one homogenous co-extensiveculture. It is peopled by a myriad of ethnic groups with different social structures and cultures.The term African Culture refers only to the broad pattern of social organization, values and1449 HRLJ 333 (1988)."'Commission to study the Organization of Peace. 29th Report, Regional Protection andPromotion of Human Rights in Africa (1980) at 30.50norms, generally possessed by most African ethnic groups'. Unlike the European (in Article15) or the American Convention (in Article 27), the African Charter does not contain aderogation clause for war time or public emergency. However, it does contain thirdgeneration' human rights emanating from philosophical, ideological and economic bases. Inaddition the African Charter points out the importance of cultural aspects for the descriptionidentification and interpretation of human rights. The European and the American instrumentsare based on liberalism, as both derive from the United Nation Instruments. Those later oneswere drafted by states with populations of European origin and largely Christian traditions. Anexample for this cultural aspect is the inclusion of rights of people which exists only in theAfrican Charter' Some minor adjustments to the Charter had to be made in the form ofamendments, as for example the drafters forgot to include to whom the states should addresstheir state reports and thus failed to do so for a number of years. The Commission is still trying"E. Bondzie-Simpson, "A critique of the African Charter on Human and Peoples' Rights"(1988) 31 Howard Law Journal 643-665.'First generation are civil and political rights which started in Europe in the late 18thcentury in order to establish a prohibition of interference by the state with the freedoms of theindividual.Second generation are social and economic rights which started with the socialistic revolutionsagainst exploitation in the early 1900's and were directed at economic security andindependence.The term third generation was introduced by Karel Vasak in the Lecture to the Tenth Sessionof the International Institut of Human Rights 1979. It contains human rights, such asdevelopment, environment, peace, communication and to share the common heritage ofmankind.See for the emerging of new human rights: J. Swanson, "The emergence of new rights in theAfrican Charter" (1991) 12 New York Law School International and Comparative Journal 307-333."See for the discussion of the term people: R. Kiwanuka, "The Meaning of the Term"People" in the African Charter on Human and Peoples' Rights" (1988) 82 A.J.I.L. 80-101,with further reference.51to get a permanent seat. To this point it travels with the OAU and still lacks some vitalinfrastructure such as a library.C. ArabiaIn the Islamic world some attempts were made to protect human rights. The League ofArab States established in 1968 the Permanent Arab Commission on Human Rights'''. Thisbody drafted the Arab Declaration of Human Rights', which was widely disputed among theArab states. Judged to be inconsistent with the Koran, the document "is considered to be deadnow" 151 . After the expulsion of Egypt from the League in the early 1980's, the question wasraised again and an Arab Convention on Human Rights 152 drafted, but the League's Councilstalled further progress with the help of a resolution, which called for the sole implementationof the Koran as human rights basis". Due to the negative attitude of Arab States towardhuman rights protection there seems to be little chance for a regional protection system, as longas no dramatic changes in the governmental systems occur.D. America'Created according to Article 4 of the Pact of the Arab League.'English text only in: M. Al-Ajaji, The Arabic League and Human Rights  (LL.M. Thesis,University of British Columbia, 1990 at Appendix B'Ibid. at 46.'Ibid. Appendix C.'Resolution 44458/83 on March 28, 1985.52Inter-American human rights law" is set up in two overlapping frameworks, one basedon the Charter of the Organization of American States' 55 , the other established by theAmerican Convention on Human Rights' s'. The latter has been amended by two additionalprotocols, the Protocol of San Salvador's' concerning economic social and cultural rights. andthe Protocol concerning the abolition of the death penalty'.The American Convention of Human Rights is binding upon 22 of the 33 OAS' s'member states. Twelve of the state parties to the Convention have deposited a declarationaccording to the terms of Article 62, by which they recognize the jurisdiction of the Inter-'54M. Janis,, An Introduction to International Law (Boston: Little, Brown and Co., 1988) at192-197.'55 119 U.N.T.S. 3; 721 U.N.T.S. 324; (1986) 25 I.L.M. 529. Signed at Bogota April 30,1948, in force since December 13, 1951, as amended by the Protocol of Cartagena de Indiasfrom December 5, 1985, approved November 14, 1988, (1989) 28 I.L.M. 156, however not inforce for all members of the OAS, see Art. 21 (3) of the Protocol.'According to its final Article it is to be called "Pact of San Jose". (1970) 9 I.L.M. 673;opened for signature in San Jose, Costa Rica, November 22, 1969, in force since July 18,1978.It had on January 1, 1991, 22 state parties, Chile becoming its latest member on August 21,1990.(1991) 30 I.L.M. 575. Twelve states are bound by the special jurisdiction according toArticle 62 of the Convention.'5'(1989) 28 I.L.M. 156.'58(1990) 29 I.L.M. 1447.Peru is now trying to get rid of its obligations under the Charter the Convention and theOptional Protocols, as President Fujimori tries to introduce the death penalty again, in order tobe able to execute the leader of the "Shining Path". This will drive Peru further into world-videisolation as it would not only be a breach of the Pact of San Jose, but also a breach of theinternational customary law of "nulla poena sine lege", as the death penalty can only be appliedwhen it was in force before the committing of the crime. "Perus Praesident Fujimori willTodesstrafe wieder einfuehren" Sueddeutsche Zeitung (9 October 1992) 9.'59The OAS itself was founded in 1890 as the International Union of American RepublicsIt was renamed the Pan American Union in 1912. Presently the OAS comprises 33 states,Canada having become its most recent member on January 8, 1990.53American Court of Human Rights.1. The Inter-American Commission on Human Rightsa. Historical developmentThe original OAS Charter contained very little about human rights, proclaiming only "thefundamental rights of the individual without distinction as to race, nationality, creed or sex' s'without defining those rights. In addition to this Charter there exists another instrument, theAmerican Declaration of Rights and Duties of Man", adopted on May 2, 1948, almost eightmonth prior to the United Nations approval of the Universal Declaration of Human Rights. TheAmerican Declaration, like the European Convention on Human Rights, enumerates substantiverights for every human being such as, "the right to life, liberty and the security of [the] person,the right to be equal before the law, the right freely to express a religious faith" 162 . However,neither of the Declaration nor the Charter established any institutional mechanism to ensure theimplementation of the human rights mentioned therein. The Bogota conference' went on"OAS-Charter, Article 3 (j); now Article 3 (k). See also Article 16: "...each State has theright to develop its cultural and economic life freely and naturally. In this free development, theState shall respect the rights of the individual and the principles of universal morality"."Ninth International Conference of American States, held in Bogota, March 30 to May 2,1948, Resolution XXX, OAS Off. Rec. OEA/Series L/V/II.23, Doc. 21 (English) Rev. 2, at 15(1975); (1949 Supplement) 49 A.J.I.L. 133.'62American Declaration, Articles I, II and III.'See above, note 161.54record with an understanding that Article 5 (j) of the OAS Charter did not through incorporationby reference transform the provisions of the American Declaration of the Rights and Duties ofMan into "contractual obligation" and that consequently the Declaration lacked the status of"positive substantive law" . 1"In August 1959 the Inter-American Commission on Human Rights was created", andthere were calls for the drafting of an American Convention on Human Rights. The"Statute"' of the Commission was approved by the Council of the OAS on May 25, 1960,and its first meeting was held in that year. Shortly after assuming office, the Commissionformally interpreted Article 9 (b) of its Statute as empowering it "to make generalrecommendations to each individual member state, as well as to all of them"'. In accordancewith this interpretation, the Commission started to study the situation of human rights in severalAmerican Republics, the governments of which were engaged in large-scale violations of humanrights. The Commission addressed these through issuing recommendations. Reports werepublished, documenting the violations and complaints were examined by hearing witnesses andundertaking on-site investigations. The Commission tried several times without success to obtain'Inter American Juridical Committee, Report to the Inter-American Council of JuristsConcerning Resolution XXXI of the Bogota Conference, September 26, 1949, reprinted in PanAmerican Union, Human Rights in the American States, 1960, p.163-165."Resolution VIII, Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago,Chile, August 12-18, 1959, Final Act, OAS Off. Rec. OEA/Ser. C/II.5 (English), at 10-11(1960).'Article 1 (2) (b) of the Statute of the Commission declares that in relation to states thathave not ratified the Convention "human rights are understood to be ... the rights set forth inthe American Declaration". Text reproduced in OAS Off. Rec. OEA/Ser.L/V/I.4 Rev.(English), at 9 (1963)."Buergenthal, 69 A .J.I.L. 830 (1975).55authorization to act on individual communications. Finally, the Commission's mandate wasstrengthened by the Second Special Inter-American Conference", the Commission wasauthorized to examine communications from individuals, charging violations of the rightsprotected by the Declaration and the Charter. This enlargement of powers was formalized in1966 by the Council of the OAS through amendment to the Statute of the Commission' 9 . Theamendment confirmed, among other things, the power of the Commission to consider individualcomplaints.The Commission's authority was further enhanced through being proclaimed one of the"principal" organs of the OAS through the 1967 amendment to the OAS Charter' anddescribed its function as being "to promote the observance and protection of human rights andto serve as a consultative organ of the Organization in these matters'''. The result of thoseamendments was the incorporation of the Statute of the Commission and the AmericanDeclaration of the Rights and Duties of Man into the OAS Charter by reference. The entiresystem was now based on a solid constitutional basis."Although the American Convention on Human Rights was adopted and opened for'Held in Rio de Janeiro, November 17-30, 1965, Resolution XXII, Final Act OAS Off.Rec. OEA/Ser.C/ 1.13 (English) at 32-34 (1965).169Article 9 (bis), Report on the work accomplished during its thirteenth session, April 18-28, 1966, OAS Off Rec. OEA/Ser. L/V/II 14, Doc.35 (English), at 22-24 (1965).'The "Protocol of Buenos Aires" was signed on February 27, 1967; 21 U.S.T. 607; TIAS,No.6847. The amended OAS Charter entered into force on February 27, 1970.171 0AS-Charter, Articles 51 (e), now 52 (e) and 112, now 111.'72T. Buergenthal, "The revised OAS Charter and the Protection of Human Rights" (1975)69 A.J.I.L. 333.56signature in 1969, it took until 1978 for it to receive the eleven ratifications required for its entryinto force. During that nine-year period Article 150 of the revised Charter provided that "untilthe Inter-American Convention on Human Rights, referred to in Chapter XVIII, enters intoforce, the present Inter-American Commission on Human Rights shall keep vigilance over theobservance of the human rights." Upon entry into force of the American Convention on HumanRights in 1978, the Commission started to serve a dual purpose. It works for the OAS-Chartersystem as the investigatory organ under the OAS procedure, and also functions as thepreliminary institution for the Inter-American Court of Human Rights'. For that reason, theCommission was reconstituted in 1979 with a new statute approved by the OAS".b. Composition'The Commission is composed of seven members who are to "represent all the membercountries" of the OAS, elected by the OAS General Assembly for four year once renewableterms. It is charged to "develop an awareness of human rights among the peoples of America",to make reports and to take action on petitions'. The members are not required to reside at'American Convention on Human Rights, Articles 48-50.'Approved by Resolution No. 447 taken by the General Assembly of the OAS at its NinthRegular Session held in La Paz, Bolivia, October 1979, text printed in Handbook of the ExistingRules Pertaining to Human Rights in the Inter American System: OEA/Ser.L/V/II.65 Doc.6,July 1st, 1985."T. Farer, "The Inter American Commission on Human Rights" (1981) 9 InternationalJournal of Law Libraries 253.'American Convention on Human Rights, Articles 34-37 and 41. See also Article 2 and 3of the Statute of the Inter-American Commission on Human Rights.57the seat of the Commission nor to devote full and exclusive attention to its tasks'. Thechairman is elected by the vote of an absolute majority of the members'''. Under itsregulations, the Commission is authorized to hold up to eight weeks of regular meetings per yearand such extraordinary sessions as may be required'. The Secretariat of the Commission,including its Executive Secretary, is appointed not by the Commission members but by theSecretary General of the Organization'''. The Commission's budget and the emoluments ofthe members are fixed by the Council of the Organization, to which the Commission mustpresent an annual agenda of activities. Until 1977, staffing had been frozen at four lawyersdespite a caseload that had increased nearly 1000 % since 1973. The staff has since beenexpanded, and there are now nine lawyers in addition to the Executive Secretary. TheCommission usually receives about 500 complaints per year, with each complaint frequentlyinvolving more than one victim. In 1980, when members of the Commission visited Argentina,5000 complaints were received 181 .c. Procedures and effects'"T. Buergenthal, "The Inter-American Commission on Human Rights" (1965) 59 A.J.I.L.337.'Statute of the Commission, Article 14.'Ibid. Article 16 and 17.'Ibid. Article 21."C. Medina, "The Inter-American Commission on Human Rights and the Inter-AmericanCourt of Human Rights: reflections on a joint venture" (1990) 12 Human Rights Quarterly 448.'82T. Farer, "The Inter-American Commission on Human Rights" (1981) 9 InternationalJournal of Law Libraries 254.58The Commission pursues three basic activities: first of all, it considers individualcomplaints regarding specific violations of human rights by a given member state; secondly, itprepares and publishes country reports on the general situation regarding human rights in a givencountry; and finally, it undertakes other activities aimed at the promotion of human rights,including efforts to secure ratification of the American Convention on Human Rights,preparation of studies and reports on general themes related to human rights, preparation of theannual report and publication of the Inter-American Yearbook of Human Rights'.The procedure commences as follows. Any person or group of persons or legallyrecognized nongovernmental entity may submit petitions to the Commission, in any of its officiallanguages, on his/her or its own behalf or on behalf of a third person, with regard to allegedviolations of human rights recognized in the American Declaration of the Rights and Duties ofMan.In order to be considered, the complaint has to fulfil two preliminary requirements. First,all domestic remedies have to be exhausted prior to submission. There are some exceptionsmentioned in the Charter, when the exhaustion of remedies requirement is not applicable.Essentially those exceptions mean that the requirement is not applicable when there are noeffective remedies to exhaust. The second requirement is to show that the subject of the petitionor communication is not pending in another international settlement proceeding'.The Commission will then communicate with the government in question, forwarding the"'Statute of the Commission, Article 18.'American Convention on Human Rights, Article 46 and Statute of the Commission,Articles 19 (a) and 20.59petition without disclosing the identity of the petitioner unless it is authorized to do so, andrequesting information. In serious cases the Commission may request the government in questionto allow the Commission to conduct on-site investigations. If the government fails to providethe requested information within a period of 180 days, or if the evidence provided does not leadto a different conclusion, the Commission will adopt a decision declaring the facts related in thedenunciation to be true and it will formulate the suggestions and recommendations it considersappropriate. If the government provides information tending to disprove the complaint's charges,the latter is then informed about the response and given an opportunity to make observations andpresent evidence in rebuttal. This rebuttal will be forwarded to the government giving them athirty day period to make final observations'.To reach a friendly settlement' 86 the Commission places itself to the disposal of theparties concerned at any stage of the examination. If no friendly settlement is reached, theCommission will examine the case including all the gathered evidence. From this basis, theCommission will formulate a conclusion, make recommendations and suggestions. Thisconclusion will be forwarded to the State party concerned'.If the State fails to adopt the recommended measures, the Commission may either includethe matter in its annual report to the General Assembly or choose any other means which itconsiders appropriate. One example is the drawing of a country report. Country reports are in'American Convention on Human Rights, Article 48 and Statute of the Commission, Article20.'American Convention on Human Rights, Article 49 and Statute of the Commission Article20 .'American Convention on Human Rights, Article 50 and Statute of the Commission, Article20.60general based on information obtained through individual complaints as well as other informationavailable to the Commission from a variety of sources.The Commission does have some impact in the real world "as it does seem to have savedlives and nurtured the democratic freedom'. However, governments do not tend to admitdelinquencies. If an individual is freed, his or her liberation will be advertised as an act ofofficial grace. Governments often do not to cooperate with the Commission. Most unfortunatelythe real sanctions and incentives remain at the disposal of governments.2. The Inter-American Court of Human Rights 1"a. Historical developmentThe Court was established by the American Convention on Human Rights. The judgesconstituting the first Court were elected in May 1979. The Court drafted its own Statute,'which was approved by the OAS General Assembly, and adopted its own Rules ofProcedure'.A resolution adopted by the Assembly in 1978 located the permanent seat of the Court' 88T. Farer, supra note 182 at 255.'89T. Buergenthal, "Inter American Court of Human Rights" (1982) 76 A.J.I.L. 235-238.S. Davidson, The Inter American Court of Human Rights, (Aldershot: Dartmouth, 1992).190(1980) 19 I.L.M. 635.191 (1981) 20 I.L.M. 1289. New rules of procedure were adopted in 1991.61in Costa Rica.b. CompositionThe Court consists of seven judges , nominated and elected by the states parties to theConvention'. The judges must be nationals of an OAS member state, but they need not havethe nationality of the states parties to the Convention 193 . The regular term of the judges is sixyears, but they may be reelected for an additional term. The President of the Court, who,together with the Vice-President is elected for a two year term and may be reelected, directs thework of the Court and represents it to the outside. The President, the Vice-President and a thirdjudge who is designated by the President compose the permanent Commission.The Secretariat' of the Court is headed by the Secretary, who is appointed by theCourt for a five year renewable term. Unlike the Commission, whose Secretary is appointed bythe Secretary General of the OAS, the Court has the power to ensure the loyalty of its chiefadministrative officer.All judicial decisions of the Court must be adopted by the Plenary Court.c. Procedures and effects'American Convention on Human Rights, Article 52.193American Convention on Human Rights, Article 53. The most prominent of such memberswas Thomas Buergenthal from the USA.'American Convention on Human Rights, Article 59.62The Court has adjudicatory jurisdiction over disputes regarding whether a state party hasviolated the human rights of an individual guaranteed by the Convention. Further, the Court hasadvisory jurisdiction which empowers it to interpret the Convention and other human rightsinstruments at the request of an OAS member state or of various OAS organs.Adjudicatory jurisdiction commences either by a state complaint, which demands aspecial ratification' of the state parties concerned or, if this ratification has not taken place,an agreement between the state parties to submit the case on an "ad hoc basis". The second wayof commencing this jurisdiction is through the complaint of an individual, which can also besubmitted by a group of persons or any recognized nongovernmental entity. Upon ratificationof the Convention the state party becomes liable to those complaints.The complaint is submitted to the Commission in order to complete the procedures ofArticles 48-50. The first stage is to confirm the admissibility of the complaint in ensuring thatthe preconditions of Articles 46 and 47 exist. These are identical to those discussed in relationto the Commission: the exhaustion of local remedies or its equivalent, and ensuring that this caseis not pending in front of any other international body. For those requirements the Court maygrant a waiver, which can go even as far as the omission of the entire Commissionprocedure'. A slightly different issue was presented to the Court by the Government of CostaRica. In this case, even before a private complaint was filed with the Commission, theGovernment petitioned the Court to determine whether Costa Rica had violated the human rights195American Convention on Human Rights, Article 62.196T. Buergenthal, "The Inter-American Court of Human Rights" (1982) 76 A.J.I.L. 231 at239.63of a young woman who was murdered by one of her guards in a Costa Rica jail. In submittingthe case directly to the Court, the Government of Costa Rica formally claimed the right to waivethe proceedings before the Commission. The Court ruled against Costa Rica and stated that theproceedings before the Commission have not been created for the sole benefit of the States, butalso in order to allow for the exercise of important individual rights'.The second stage of the Commission procedure is the investigation. If the state partyconcerned does not provide the information requested within 180 days the Commission regardsthe submitted facts as being true. So far this rule has been used extensively. The Commissioninvestigates the case by holding hearings, sighting documents and questioning witnesses. Inaddition they may hold on site investigations.At any stage of the procedure they are offering their good services for a friendlysettlement. If the friendly settlement has not been reached by the end of this stage, theCommission draws a report, which sets forth the facts and conclusions. This report is transmittedto the states concerned with proposals and recommendations. After a three month "cooling off"period either the Commission or the state "concerned" can submit the case to the Inter-AmericanCourt of Human Rights. The term "concerned" is still disputed; it is unclear whether it includesother state parties to the Charter or only the plaintiff and the defendant.The Court will respond either by a judgement m or a preliminary decision'''. Thisdecision consists of the naming of the violated rights of the convention, the rights to which the'Viviana Gallardo Case, Final Decision 13 November 1981, (1981) 20 I.L.M. 1424."American Convention on Human Rights, Articles 66-69.'American Convention on Human Rights, Article 63.64injured party is entitled to and the steps which are to be taken to remedy' the situation. Inthe majority of the decisions this meant financial remedies to the surviving heirs of thevictim201 . An extraordinary remedy is mentioned in Article 63 (2): this remedy, also used inpreliminary decisions, includes provisional measures, such as ordering the Government inquestion to ensure the safety of a witness. In recent years, the Court has used those to cope withthe disappearance of people in Central and South America.The enforcement of judgments is limited'. The Court can only inform the OASGeneral Assembly'. In the majority of the cases the Court has to rely on the cooperation ofthe state parties and its moral authority.The advisory practice of the Inter-American Court of Human Rights'', mentioned inArticle 64, had been used extensively before the Court rendered its first judgement. So far theCourt has rendered twelve advisory opinions"; in nine it interpreted human rightsinstruments, in one the compatibility of domestic law with international instruments, in one itdealt with both issues and in one it declined to respond. The advisory jurisdiction of the Court"American Convention on Human Rights, Article 63.201Example: Velasquez Rodriguez Case, Decision 29 July 1988, Inter American Yearbookon Human Rights 1988 at 997.'American Convention on Human Rights, Article 73.'American Convention on Human Rights, Article 65.Buergenthal, "The advisory practice of the Inter-American Court of Human Rights"(1985) 78 A.J.I.L. 1."As of 12 January 1992.65is not totally unique, as similar procedures exist in both other regional instruments'. Thereare three different ways to obtain an advisory opinion: either an OAS member requests anInterpretation of the Convention or of any other treaty which is concerned with the protectionof human rights in the American States, or any organ of the OAS which is listed in Chapter Xof the Charter may submit the same request. The third way is that any OAS member maydemand an opinion on the compatibility of any of its domestic laws with the above mentionedinstruments.The problem of "other treaties" was solved by a decision of the Court: "the power tointerpret any treaty as long as it is directly related to the protection of human rights in a MemberState of the Inter-American system"."The distinction between contentious and advisory jurisdiction is not always clear. In thethird advisory opinion, concerning the death penalty in Guatemala, requested by theCommission, the question was raised', whether the proceedings were really contentiousproceedings under the guise of an advisory opinion, conducted in order to gain jurisdiction overan OAS member state (Guatemala) that at the time did not recognize the contentious jurisdictionof the Court.'The European Court has a narrow advisory jurisdiction which permits the Court torespond to requests from the Committee of Ministers for opinions on questions outside theCourt's contentious jurisdiction. Additional Protocol No.2, Articles 1 (1) and 1 (2).The African Commission on Human and Peoples' Rights may interpret the Banjul Charter at therequest of an OAU institution, an OAU recognized organization or any state party to theCharter. Article 45 (3).'Other Treaties (1982), Inter-Am. Ct. H.R. Advisory Opinion No. OC-1/82, Ser. A No.1, at 21, (1983) 22 I.L.M. 51.208A. Hennelly, Human Rights in the Americas: the struggle for consensus (WashingtonD.C.: Government Printing Office, 1982) at 180.66CHAPTER FOUR: Interpretation of human rights treaties:The example of the Inter-American SystemI. By the Inter-American CourtA. In cases1. Viviana Gallardo 209a. History of the caseViviana Gallardo, a Costa Rica citizen, was held in preventive detention in a police postawaiting trial in connection with charges resulting from the killing of a number of Costa Ricanpolicemen by a group of individuals identified as terrorists. One of her guards, a Costa RicanCivil Guard member, shot her to death on 1 July 1981. The Government of Costa Ricasubmitted the case to the Inter-American Court of Human Rights while stating that theGovernment would waive the right of the exhaustion of domestic remedies and all rightsconnected with preliminary measures before the Commission (Articles 48-50). If the Court wereto decline to accept the case, the Government demanded its submission to the Inter-AmericanCommission. In its first decision, the Court demanded further details from the Government; in'In the Matter of Viviana Gallardo (Costa Rica)  (1981), Inter-Am. Ct. H.R. No. G 101/81,Ser. A, Annual Report of the Inter-American Court of Human Rights: 1981,OEA/Ser.L/III.5/doc.13, 20 I.L.M. 1424, (1981) 2 HRLJ 108.67its final decision, the Court held the case inadmissible on the grounds that none of the abovementioned rights could be waived, as they had "not been created for the sole benefit of theStates, but also in order to allow for the exercise of important individual rights, especially thoseof the victims" 210 . The Court therefore submitted the case to the Commission. After theCommission settled the matter, the Court struck the case from its list in a third decision in 1984.b. Methods appliedThe method of the Court can best be classified as being objective, as the text was themajor basis of interpretation. In addition some consideration is given to the object and purposeof the treaty. The Court stressed that the rights of the individual have to be preserved 211 . Itrejected to use the subjective method, where the intentions of the state parties would have beenof interest. In addition, the Court tried to avoid the use of a dynamic approach. This can bestbe seen in the following statement: "...that the Convention be interpreted in favour of theindividual, who is the object of international protection, as long as such an interpretation doesnot result in a modification of the system."' In pointing out the dangers of a "modificationof the system", the Court shows its reluctance to apply a dynamic interpretation method.'Ibid. 2 HRLJ at 333.211" ..the Convention has to be interpreted in favour of the individual, who is the object ofinternational protection, as long as such an interpretation does not result in a modification of thesystem." Ibid. 2 HRLT at 331. 2122 HRLJ 331.68c. Rules appliedThe Court ruled that the mentioned rights and procedures were not subject to waiver bya state party. This was done by interpreting the text of the Convention and the respective rulesof procedure. The Court cited Article 31 of the Vienna Convention, stating,"Naturally, under international law relating to the interpretation of treaties, theaforementioned provision must be read in accordance with 'the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object andpurpose' " 213 .From this starting point the Court evaluates the role of the Commission under theConvention and calls it "a channel through which the Convention gives the individual quaindividual the possibility to activate the international system for the protection of human rights."This latter conclusion can not be derived solely from reading the text, as the text itself remainsambiguous, and does not state "expressis verbis" that the preliminary actions before theCommission have to be fulfilled. The Court itself lessens the severity of its decision by addingfurther on that in special cases the preliminary actions may be waived. However, in invokingthe Vienna Convention, the Court established rules of interpretation which it has been followingsince that time, accepting those rules as the codification of the customary international law.2. Velasquez Rodriguez 2142132 HRLJ 332.214Velasquez Rodriguez Case (Honduras) (1988), Inter-Am. Ct. H.R. Ser. A, Annual Reportof the Inter-American Court of Human Rights: 1988,  OEA/Ser.L/V/ 111.19/ doc.13 (1988) 35at 66, 28 I.L.M. 321, 1987 Inter-American Yearbook on Human Rights at 772.69a. History of the caseOn the afternoon of September 12, 1981, Angel Manfredo Velasquez Rodriguez, a 22-year-old student and Honduran citizen, was, according to several eyewitnesses, detained,interrogated and tortured in a cell of Public Security Forces Station No.2 in the Barrio ElManchem of the city of Tegucialpa after having been charged with "political crimes". OnSeptember 17, 1981, he was transferred to the First Infantry Battalion, and once againinterrogated and tortured. He was never heard of again.On October 7, 1981, a petition was filed with the Commission. On October 24, 1981,the Commission transmitted the petition to the Honduran Government, requesting informationon the matter. The Commission, not having received any reply, repeated this action onNovember 24, 1981, October 6, 1982, March 23 and August 9, 1983, while threatening topresume the allegations to be true according to Article 42 (at that time Article 39) of itsregulations. On October 4, 1983, the Commission issued a decision'', presuming theallegations to be true, and ruled that the Honduran Government was in breach of Articles 4 and7 of the Convention (right to life and right to personal liberty). It demanded that the HonduranGovernment prosecutes the responsible persons and threatened to include the matter in its annualreport to the OAS General Assembly if the responsible persons were not prosecuted within 60days.Finally, on November 18, 1983, the Honduran Government responded. In this responsethe Government pointed out that the domestic remedies had not been exhausted. In addition the"'Resolution 30/83.70Government declared that it had no knowledge about the whereabouts of Velasquez Rodriguez.Furthermore it denied that he ever had been detained and presumed him to be with "Salvadoranguerilla groups". The Commission demanded further information on the exhaustion of domesticlegal remedies and decided to continue its study of this case on May 30, 1984. This request wasrepeated on January 29, 1985, along with a warning that a final decision would be rendered inMarch 1985. On March 1, 1985 the Government of Honduras demanded a postponement of thisfinal decision and informed the Commission about the setting up of an investigatory commission.On March 11, 1985, the Commission granted a final 30 day limit for the presentation ofinformation. On April 7, 1986, the Government informed the Commission about the outcomeof the proceeding before the First Criminal Court filed on behalf of the disappeared VelasquezRodriguez. The tribunal had dismissed the complaint against every suspect except GeneralGustavo Alvarez Martinez, who had left the country and had not given testimony. The decisionwas affirmed by the First Court of Appeals. The Commission found this information insufficientto determine the allegations not to be true and referred the matter to the Court on April 18,1986".The Government addressed the Court, pointing out that the Commission did not followthe procedure established for the admissibility of a petition. In addition it complained that theCommission did not consider the information provided on exhaustion of local remedies and thatthese local remedies were definitely not exhausted.The Government stressed several other"mistakes" of the Commission: that it did not follow the established procedures for thepreparation of a report, that it ignored the provision regarding friendly settlement and that the'Resolution 22/86.71preliminary procedures of Articles 48-50 had not been executed. The Commission replied thatsince the Honduran Government had seriously violated the rights of a human being, thesubstantive or procedural objections raised by the Government had no legal basis under therelevant articles of the Convention or under the standards of international law. Further, it askedthe Court to rule on a fair measure of compensation to the injured party.The Court ruled on June 26, 1987 in a preliminary judgement that it had jurisdiction, asHonduras had been party to the Convention since September 8, 1977 and had recognized thecontentious jurisdiction of the Court on September 9, 1981. It also ruled that it rejected allpreliminary objections of the Honduran Government except the one concerning the exhaustionof domestic legal remedies. The Court received documents and evidence and held a hearingbetween September 30 and October 7, 1987. During this hearing it ordered the submission offurther evidence. Among the evidence was the testimony of several witnesses who weremembers of the Honduran Armed Forces. The Honduran Government demanded that closedhearings be held on Honduran territory with those witnesses because of security reasons. TheCourt rejected this plea on December 24, 1987. The Court was informed on January 5, 1988,that one of the requested witnesses had been assassinated and another one, who had testified inthe September hearings, had also been killed. The Court issued an order on January 15, 1988,demanding that the Honduran Government protect the life of the remaining summoned witnesses.In a second order on January 18, 1988, the Court ordered the Government to inform the Courtabout the measures taken. Both orders were issued under the preliminary measures provision ofArticle 23. The Court received further evidence and, on July 29, 1988, issued its first finaljudgement in a contentious case. It ruled that the Honduran Government had violated the rights72of Velasquez Rodriguez under Articles 4, 5 and 7 of the Convention, all of them in conjunctionwith Article 1 (right of life, humane treatment and personal liberty), and awarded the next ofkin fair compensation.On July 21, 1989 the Court issued a judgement setting forth the compensation in localcurrency, which, at the time the judgement was rendered, was equivalent to about US$ 375,000.Due to hyper-inflation in Honduras, this compensation as expressed in local currency appearedto be meaningless. Therefore the Court issued on August 17, 1990 an interpretation of thejudgement of the compensatory damages of July 21, 1989. In this interpretation, the amount wasexpresses in "hard currency". The Court used as a legal base for this change of its previousjudgement the principle of "restitutio in integrum". This principle of a fair compensation for thenext of kin, had not been mentioned in the previous judgement, but was, according to the judges"object and purpose" of the judgement.b. Methods appliedThe Court was faced in this first contentious case with a number of problems. One ofthese, which can be followed throughout the case, is the problem of fact-finding. As the Courthas to rely on the material submitted by the parties, it is dependent on the cooperation of all ofthose involved. The Commission was forced to make threats to use all its (limited) powers toreceive information from the Government. Then the Court was faced with the problem that theCommission did not follow the procedures established in the Convention and their own rules ofprocedure. According to my view, the Commission took too broad a view in trying to obtain a73full perspective of the human rights situation in Honduras at that point in time and did notclosely enough consider the individual cases that the Commission was actually handling andindeed mandated to deal with. The Court evaluated those procedural steps against the will of theCommission, which seemed to consider the Court to be something like a court of review. Thisview was rejected by the Court. Here the Court invoked something close to a dynamic approach:"[t]he Convention must be interpreted so as to give it its full meaning and to enable thesystem for the protection of human rights entrusted to the Commission and the Court toattain its 'appropriate effects' . " 217This approach leaves it open to the Court to evoke the effects it deems to be appropriateat any given point in time.Regarding the question of not considering a friendly settlement the Court first took aliteral approach to the Convention, which indicated that the provisions appeared to bemandatory. However the Court concluded that this provision had to be interpreted in the contextof the Convention and therefore must be an optional provision:"...if the phrase is interpreted within the context of the Convention, it is clear that theCommission should attempt such friendly settlement only when the circumstances of thecontroversy make such an option suitable or necessary, at the Commission's solediscretion. 11218Most important, the Court realized that the American Convention did not cover"expressis verbis" the disappearance of persons. It was therefore forced to create this crimethrough a mixture of three articles, 4 5, 7 and referring in all articles to Article 1."International practice and doctrine have often categorized disappearances as a crimeagainst humanity, although there is no treaty in force which is applicable to the State2179 HRLJ 242.2 ' 8 1987 Inter-American Yearbook on Human Rights at 790.74Parties to the Convention and which uses this terminology'''.The Court tries to justify its judgement by referring to resolutions of the General Assembly ofthe OAS:"The General Assembly of the OAS has resolved that it 'is an affront to the conscienceof the hemisphere and constitutes a crime against humanity, ..., this practice is cruel andinhuman, mocks the rule of law, and undermines those norms which guarantee protectionagainst arbitrary detention and the right to personal security and safety'. "220With the help of this quote, the Court closes the gap to the written provisions of theConvention. The Court gives an explanation for the absence of a provision for disappearancesin the Convention as well:"Disappearances are not new in the history of human rights violations. However, theirsystematic and repeated nature and their use...is a recent phenomenon. Although thispractice exists virtually worldwide, it has occurred with exceptional intensity in LatinAmerica in the last few years."The Court therefore interprets the Convention not in the light it had, when theConvention was being drawn up (1969), but under the present day circumstances, when this casewas brought in front of the Court (1988). This is the classical example of the dynamicinterpretation, which leaves all subjective approaches, the intentions of the treaty partners, aswell as objective approaches, the meaning of the text at the time the provisions were adopted,aside. The Inter-American Court starts out in its very first contentious case with the mostmodern and flexible and, for the individual who is supposed to be protected by the treaty, mostfavourable interpretation method.2199 HRLJ at 238.220Thid .75c. Rules appliedThe Court always begins its considerations with the text of the Convention. This patternbegan with this case and has been followed until the present. A difference may be noted betweenthe interpretation of procedural norms and the substantive norms covering the rights of theindividual.3. Fairen Garbi and Solis Corrales 221a. History of the caseFrancisco Fairen Garbi, a 28-year-old student, and Yolanda Solis Corrales, a 28-year-oldteacher, both Costa Rican nationals, disappeared in Honduras on December 11, 1981, while intransit through that country on their way to Mexico. Both left Nicaragua en route to Hondurason December 11, 1981 at 4.00 p.m., were seen by witnesses on December 12, 1981 inTegucigalpa, and then never heard of again. A petition was filed with the Commission onJanuary 14, 1982. The relevant parts were transmitted to the Honduran Government on January19, 1982. The Government informed the Commission on March 8, 1982 that Garbi and Corraleshad entered the country on the mentioned day, but had left for Guatemala the following day.Several departments of the Honduran Government made contradictory statements, one even as221Fairen Garbi and Solis Corrales et al. Case, 1987 Inter-American Yearbook on HumanRights at 814, Inter-Am. Ct. H.R. Ser. A (1989) at 73.76a newspaper advertisement, whereby it was either claimed that neither of the above ever enteredor just one entered Honduras, but left the following day to Guatemala. Documents appearedstating that they had left Guatemala and entered El Salvador. Statements were made by theCommission and the Honduran government throughout the following two years which confusedthe situation concerning the facts even more. The Commission finally adopted a resolution onOctober 4, 1984 recommending that the Honduran Government undertake a thoroughinvestigation. Since it deemed the new investigation of the Government insufficient, theCommission referred the matter to the Court through Resolution of April 18, 1986.The Court found the case admissible after rejecting all objections of the Governmentexcept the one concerning the exhaustion of domestic remedies.The case was dismissed through judgement of March 15, 1989,' since the evidencein this case was so confusing that reasonable doubt remained that Garbi and Corrales wereactually detained in Honduras.b. Methods appliedThe Court was confronted with procedural questions, such as the non-exhaustion of localremedies. The Court referred here to its previous judgement in the Velasquez Case. The Caseproved however the insufficiency of the regulations of evidence gathering in the Convention. TheCourt tried to establish some standards for the burden of proof, by citing several judgements of222Fairen-Garbi and Solis Corrales (Honduras) (1989), Inter-Am. Ct. of H. R. Ser. A at 73.77the International Court of Justice223 . The Court stressed its right to determine which rules ofprocedure from the domestic.legal system it deems to be applicable: "Since this Court is aninternational tribunal, it has its own specialized procedures. All the elements of domestic legalprocedures are therefore not automatically applicable. The above mentioned principle isgenerally valid in international proceedings, but is particularly applicable in human rightscases." 224 The Court made also a statement on the object and purpose of human rights treaties:"The international protection of human rights should not be confused with criminaljustice. States do not appear before the Court as defendants in a criminal action. Theobjective of international human rights law is not to punish those individuals, who areguilty of violations, but rather to protect the victims and to provide for the reparation ofdamages resulting from the acts of the States responsible."'This outline for object and purpose of human rights treaties must be kept in mind, whenevaluating the methods and rules of interpretation of the Court.c. Rules appliedThe Court was faced with the same problem as in the Velasquez case, that thedisappearance of persons is not explicitly covered in the American Convention. Once again, inciting the relevant Articles 4, 5, 7 in conjunction with Article 1, the Court interpreted theConvention according to its object and purpose. It is important to note that this argument was'Corfu Channel Case [1949] I.C.J. Rep. 29-30 and Military and Paramilitary Activities inand against Nicaragua (Nicaragua v. United States of America) [1986] I.C.J. Rep. 59-60.'Inter-Am Ct. H.R. Ser. A (1989) at 124.225Thid.78supported through citing Article 31 (1) of the Vienna Convention as the primary rule forinterpretation. There are no differences to the rules of interpretation which were used in theVelasquez Case, since initially both cases were combined and the final judgements renderedshortly one after the other.4. Godinez Cruz226a. History of the caseSaul Godinez Cruz, schoolteacher, left his house by motorcycle at 6.20 a.m. on his wayto work. According to witnesses, a man in military uniform and two civilians stopped him andplaced his motorcycle and Cruz into a double cabin vehicle without license plates; he was neverheard of again.The same day a complaint on his disappearance was filed with a local Court and with theCommission. The relevant parts of the complaint were transmitted to the Honduran Governmenton November 2, 1982; the Government's response was that the request has been forwarded tothe competent authorities. The Commission repeated its request on June 1, 1983, receiving thereply that the investigations were under way. By resolution on October 4, 1983 the Commissionpresumed the allegations to be true according to Article 39 (now 42) of the regulations, renderedanother 60 day period to punish the responsible persons, and threatened to include the case into226Godinez Cruz Case, (1989) Inter-Am. Ct. H.R. Ser. A at 85, 1987 Inter-AmericanYearbook on Human Rights at 858.79its annual report to the General Assembly. Statements were exchanged over the following threeyears whereby the exhaustion of local remedies in the form of several writs of habeas corpuswas under dispute. On October 31, 1986, the Commission submitted the matter to the Court.The Court considered the case admissible and again rejected all preliminary objectionsof the Government concerning procedural matters except for the one of exhaustion of localremedies. The exhaustion of local remedies has a certain importance in the context of humanrights protection'.On January 20, 1989 228 , in the final judgement, the Court ruled that Honduras hadviolated the alleged provisions of the Convention.b. Methods appliedThis is the third in a series of cases involving the question of disappearances in227Human rights protection should not be confused with the diplomatic protection onereceives when detained in a foreign country. This diplomatic protection is carried out by thegovernment of one's country of origin; under international law the state can claim reparationsfor the injuries the individual has suffered. Human rights protection covers anybody within theterritory of a country which has adhered to a human rights protection treaty, regardless ofwhether he is a national. Before the government can be made responsible before an internationalhuman rights protection agency such as the Inter-American Court and evaluations are made asto whether this government did violate treaty obligations it had to fulfil, due to the rule "pactssunt servanda" in international law, the government must have had the opportunity to hear thecomplainants' accusations and the chance to resolve the problem internally.C. Amerasinghe, Local Remedies in International Law, (Cambridge: Grotius Publications, 1990)at 76ff and C. Trindade, The Application of the Rule of Exhaustion of Local Remedies inInternational Law: Its rationale in the international protection of individual rights, (Cambridge:University Press, 1983) at 14ff.228Godinez Cruz Case (Honduras) (1989).  Inter-Am. Ct. of H. R. Ser. A at 85.80Honduras. All the cases have in common that disappearance is not covered in the AmericanConvention and that the local remedies were not exhausted (or not exhausted according to thelocal laws). Both circumstances demanded a very dynamic approach to interpretation in orderto make the cases admissible. The most surprising difference between the previous case and thiscase is the fact that the Court rendered a judgement against Honduras and did not dismiss thecase as it had done with the previous case. The evidence in both cases was highly disputed andboth times the burden of proof remained the major obstacle. The Court could not reach theconclusion that Honduras has violated the Convention in the Fairen Garbi Case, even after itapplied its standards of proof, which it had developed in this judgement. The Court stated thatthe "standards of proof are less formal in an international legal proceeding than in a domesticone"." In the Godinez Cruz Case, the Court did not alter these standards of proof. Howeverit reached the opposite conclusion that Honduras had violated the Convention in this case. TheCourt seems to have reached this opposite decision due to a mistake made by the Hondurangovernment. The Court pointed out:"Since the Government only offered some documentary evidence in support of itspreliminary objections, but none on the merits, the Court must reach its decision withoutthe valuable assistance of a more active participation by Honduras, which mightotherwise have resulted in a more adequate presentation of its case". 230This means that Honduras could have easily reached a favourable verdict concerning thepreliminary objections to the question of non-exhaustion of local remedies, if the governmentof Honduras had been a bit more cooperative. The same line of argument was then used in the'Inter-Am. Ct. H.R. Ser. A (1989) at 131.81merits of the case. The Court first had to admit that:"...although the Court has not received any direct evidence that the disappearance of SaulGodinez was the work of governmental agents, there does exist considerablecircumstantial evidence with sufficient weight to establish the judicial presumption thatthis disappearance was carried out within the framework of the aforementionedpractice. " 231Again, due to the noncooperation of the government, the Court concluded that Honduras hadviolated the Convention:"...there has been no other attempt by the government to explain the facts nor anystatement offered to prove that Saul Godinez had been kidnapped by common criminalsor by other persons unrelated to the practice of disappearances existing at thattime_ “ . 232This is revolutionary in international law to the extent that the noncooperation with aninternational tribunal may lead to the ruling that a party violated the treaty. This example showshow much the sovereignty of a state is penetrated through human rights treaties and that thetreaty partners suddenly are under obligations which they had never dreamed of when theyconcluded the treaty. This evolutive method of the Court shows the dynamic approach in its bestcondition.c. Rules appliedAgain the textual approach was in the foreground followed by the object and purpose ofthe treaty rule. The rules used were not different than the ones used in the two previous231Ibid. at 142.232Ibid. at 14182judgements as the three of them were rendered almost at the same time and in the beginning allthree cases were tried in conjunction.5. Cases pending before the Courta. Bustios and Rojas233This case involves two journalists, one of whom, Hugo Bustios Saavedra, was killed andthe other, Eduardo Rojas Arce, wounded, while they were on their way to a city in Peru onNovember 24, 1988. After this assault death threats by military personnel were made against thewife of the victim and one of the witnesses. Another witness, Alejandro Ortiz Serna, was killedalong with two other people even after they had requested a guarantee of safety from theAttorney General. On May 16, 1990, the Inter-American Commission requested that theGovernment safeguard the above mentioned and several other witnesses by resolution. In thesame resolution the Commission requested the Court to issue an order. On June 5, 1990 thePresident issued such an order, according to Article 63(2) of the Convention and Article 23(4)of the Rules of Procedure. The protective measure then taken by the Government consisted ofan order to the threatened persons to appear in a military installation to coordinate protectivemeasures. Since the military itself was considered the cause for the danger, this measure wasconsidered to be insufficient. The Court therefore issued an order in form of a preliminarymeasure confirming the provisional measures of its president.233Bustios and Rojas Case, 11 HRLJ 257.83With regard to interpretation the interesting part of this case is limited to the question ofwhether the president of the Court had the authority to issue a preliminary measure or not. Whenrestrictively interpreting Article 23(4) of the Statute of the Court, the President does not havethe competence to issue such an order. However his action was sanctioned by the Court itselfthrough the confirmation of his order two month later. This broad interpretation resulted in atacit modification of the treaty, as no state party to the treaty objected to this interpretation ofthe Court.b. Aloeboetoe2'This case is different in so far as it involves the torture and killing of indigenous peoplein Suriname (former Dutch Guiana). A group of twenty unarmed maroons (bushnegroes) werestopped on January 1, 1988, by soldiers, and tortured with bayonets and other weapons underthe allegation that they belonged to a terrorist group. The torture took place in the presence ofsome 50 persons. The soldiers continued torturing them, including urinating on the victims, evenafter they were made aware of the fact that the victims were dwellers of a nearby village. Sevenof the twenty were taken in a military vehicle to a different place and ordered to dig their owngraves; six were shot to death, while one who tried to escape was critically wounded andabandoned. The following day, the remainder of the group demanded information from theauthorities on the whereabouts of the seven. Nobody was willing to tell them. They searched thecountryside and finally found the critically injured seventh person, who died later in a hospital.'Aloebotoe Case, 13 HRLJ 140.84The Commission referred the case to the Court on August 27, 1990, since the Government ofSuriname had not responded. In a counter-memorial before the Court Suriname argued that itwas never proven that the violations had occurred. In a second hearing Suriname accepted allresponsibility for the killing and torturing.The case is remarkable for several issues regarding interpretation. As usual in the casesbrought in front of the Court, local remedies were not thoroughly exhausted. The suddenacceptance of responsibility by Suriname relieved the Court of the necessity of lengthy fact-finding, in regard to which it had experienced some severe difficulties in previous cases. TheCourt had to interpret the Convention on the question of whether it was possible for a state toplead "guilty" or whether the evidence should be gathered anyway, as the question of assessingthe damages was still left open. The Court concluded that the state had given itself to the mercyof the Court concerning the assessment of the damages. As this interpretation was not challengedby any of the state parties, it has now become a precedent, which means that every state takingfull responsibility will have to be treated alike. The effects of this action is questionable. Whathappens if a state takes responsibility for an action where it is unclear how many people sufferedinjuries? If the state can prove after the assessment of damages that some of the persons claimingdamages actually were not harmed at all, does the Court have to reopen the case and gatherevidence? It might be a failure of the Convention that the Court is not equipped with a mediationprocedure, like the friendly settlement of the Commission, which could circumvent suchproblems.85c. Gangaram-Panday235Asok Gangaram-Panday was detained by Military Police at the Airport in Paramaribo inSuriname. The military police later reported that he had hanged himself in his cell in FortZeeland. According to an autopsy provided by the Government this appeared to be true. TheGovernment did not respond to requests made by the Commission for further information, andtherefore the Commission referred the case to the Court on August 27, 1990. The Court helda hearing whereby the pathologist and the military auditor of the Government of Suriname incharge of the incident were heard.During the hearing the Government pointed out several formal mistakes of theCommission. All of them concerned the admissibility of the case. One of the concerns was,whether a fax which had not been signed met the requirements of the filing of a case by theCommission. The Court rejected those preliminary objections by referring to one of its previousjudgements, the Velasquez case, in using its objective approach for interpretation with emphasison the object and purpose rule."The failure to observe certain formalities is not necessarily relevant when dealing on theinternational plane. What is essential is that the conditions necessary for the preservationof the procedural rights of the parties not be diminished or unbalanced and that theobjectives of the different procedures be met. "236One further objection, in which the government alleged the Commission to havecommitted an "abuse of the right of petition", has not been taken into consideration, since the235Gangaram-Panday Case,  13 HRLJ 142.236Ibid. at 145.86government failed to substantiate its claims. Again the Court showed that procedural mistakesby the states will be held more easily against the state than procedural mistakes of theCommission are held against the Commission.The objections of the government concerning the non-exhaustion of local remedies byMr. Gangaram-Panday were rejected rather briefly by the Court in repeating the essence of itsprevious judgements on this issue."Generally recognized principles of international law indicate, first, that this is a rule [theexhaustion of local remedies] that may be waived, either expressly or by implication, bythe State having the right to invoke it, as this Court has already recognized... second, theobjection asserting the non-exhaustion of domestic remedies, to be timely, must be madeat an early stage of the proceedings by the State entitled to make it, lest a waiver of therequirement be presumed..." . 237According to the Court the government had tacitly waived the right to object for the non-exhaustion of domestic remedies as its objecting was done at a later stage of the proceedings.It is important to note that the Court understands this rule as being a "generally recognizedprinciple of international law". Hereby the Court means the present day principle of internationallaw, not a principle which might have been valid at the time, when the Convention was drawn.This means the Court is interpreting this provision in a very inclusive manner, which I definedto be the dynamic method. 238 The rule used for this interpretation can be classified as aninclusive implementation of the object and purpose rule. As no other state party challenged thisverdict, it can now be accepted as a tacit treaty alteration. The Court held the case admissiblebut has not yet rendered a judgement concerning the merits.237 13 HRLJ at 145.238See above Chapter Two, I, A, 4.87d. Neira-Alegira239Victor Neira-Alegria, Edgar Zenteno-Escobar and William Zenteno-Escobar were heldin San Juan Bautista penal establishment in Peru, being charged with terrorist activities. On June18, 1986 a mutiny occurred in that prison. The Government placed the prison under thecommand of the joint staff of the armed forces. The armed forces undertook what were latercalled "appropriate measures". The three were never heard of again.The Commission referred the case to the Court on October 10, 1990. The Court setMarch 29, 1991 as the date the memorial of the Commission had to be filed. The Commissionfiled its memorial on March 28, 1991. On June 26,1991 Peru argued that the Commission hadno jurisdiction over the case and that the time limit for filing the petition had expired. The Courtrequested several minutes from a meeting of the Commission where it had examined the case.The Commission declared that those minutes are confidential and therefore of reserved nature.The Court repeated this request and threatened that it would hold the allegations of theGovernment to be true, if the Commission would not comply. The Commission then deliveredthe requested minutes.As usual domestic remedies were not exhausted and Peru pointed out this fact to theCommission. A year later, when local remedies were exhausted, Peru pointed out that fact tothe Court. The Court therefore applied the rule of estoppel:"International practice indicates that when a party in a case adopts a position that is eitherbeneficial to it or detrimental to the other party, the principle of estoppel prevents it fromsubsequently assuming the contrary position. Here the rule of 'non concedit venire contra"Neira-Alegria et al. Case, 13 HRLJ 146.88factum proprium' applies."'Concerning the exhaustion of local remedies the Court further ruled that as theGovernment did not refer to the non-exhaustion right away the right was tacitly waived as in theprevious case.Concerning the delay of filing the case, the Court pointed out that this was due torequests for a delay by the Peruvian Government. The preliminary objections were thus rejected.A final judgement has not yet been rendered.The case is interesting for interpretation purposes in two ways. In addition to therepetition of the tacit waiver, it includes the first explicit mentioning of the estoppel principleand the curious fact that the penal procedures can be held against both parties, the one whichbrings the case in front of the Court as well as the defendant. This is not explicitly regulated inthe Convention or in any of the rules of procedure, but is now clarified through this judgement.Through a further order of the Court, the replacement of a judge by a judge "ad hoc"has been carried out.241B. In advisory opinions1. No. 0C-1/82 - "other treaties" 24224°Ibid. at 148.241 13 HRLJ 407.2423 HRLJ 140, 22 I.L.M. 51.89a. History of the opinionThe Government of Peru requested on April 28, 1982 an advisory opinion of the Inter-American Court on the question, how the phrase "or of other treaties concerning the protectionof human rights in the American states" is to be interpreted. Article 64, the provision inquestion, reads in full:"1. The member states of the Organization may consult the Court regarding theinterpretation of this Convention or of other treaties concerning the protection ofhuman rights in the American states. Within their spheres of competence, the organslisted in Chapter X of the Charter of the Organization of American States, as amendedby the Protocol of Buenos Aires, may like manner consult the Court.2. The Court, at the request of a member state of the Organization, may provide thatstate with opinions regarding the compatibility of any of its domestic laws with theaforesaid international instruments."The Government included with its question a set of three possible answers as to whatkind of treaties could be meant by this provision: only treaties adopted within the framework orunder the auspices of the Inter-American system, treaties solely concluded among the AmericanStates and treaties to which one or more American states are parties.The Court received the observations of several member states and OAS-Organs. A publichearing was held on September 17, 1982 and on September 24, 1982, the opinion was rendered.The Court decided that it can exercise advisory jurisdiction with regard to any provision dealingwith the protection of human rights set forth in any international treaty applicable in theAmerican States, regardless of whether it is bi- or multilateral, whatever the principle purposeof the treaty, and regardless of whether non-Member States of the Inter-American system areor have a right to become parties thereto.90b. Methods used in the opinionThe Court right away refers to the travaux preparatoires of the Convention. The Spanishtext appeared to the Court to be the most helpful as Spanish was the working language duringthe drafting period. The question circled around the use of the terms "otro tratado concerniente",which was replaced in the final version by "otros tratados concernientes". This indicates theclear intention of the parties to extend the Courts advisory jurisdiction as far as possible. Afterthis very subjective approach, the Court however decided that the jurisdiction is limited by theobject and purpose of the treaty. In doing so the regional context of the treaty as being one forthe Americas was pointed out. This remarkable to that extent that the regional circumstance didnot seem to have played a vital role in the drafting of the Convention. Otherwise it would notbe understandable that the disappearance of individuals was not included as a violation whichwas quite serious already before the drafting of the Convention. The difficulties the Court hadto go through in order to establish this violation through interpretation have been discussedabove. The text is compared to the European Convention. This comparative work does not bringa lot of new facts to light, as the advisory jurisdiction of the European Court is very limited andwas definitely meant to be so by the treaty partners. The Court discusses therefore the problemsthat are involved with the advisory jurisdiction in the human rights area, which the drafters ofthe European Convention had already discussed:"Special problems arise in the human rights area. Since it is the purpose of human rightstreaties to guarantee the enjoyment of individual human beings of those rights andfreedoms rather than to establish reciprocal relations between states, the fear has beenexpressed that the exercise of the Court's advisory jurisdiction might weaken itscontentious jurisdiction or, worse still, that it might undermine the purpose of the latter,thus changing the system of protection provided for in the Convention to the detriment91of the victim. That is, concern has been expressed that the Court's advisory jurisdictionmight be invoked by States for the specific purpose of impairing the effectiveness of theproceedings in a case being dealt with by the Commission to avoid having to accept thecontentious jurisdiction of the Court and the binding character of the Court's decisions,..., thus interfering with the proper functioning of the Convention and adversely affectingthe interests of the victim."'"This problem, which could arise due to an overly dynamic approach in interpretation,was coped with by the Court in stating that the Court has the right to decline any demand fora advisory opinion'. This latter question was not asked for by the Government of Peru, butproved to be helpful for the 12th advisory opinion. Since it was the first time that the Court hadbeen called upon the entire advisory opinion shows the intent not to block further contentiousjurisdiction.Therefore, the objective approach of the Court and the clear denouncing of any dynamicmethod, must be seen under the particular circumstances, the noncooperation of Commission andCourt and the lack of any contentious cases. Thus object and purpose of the treaty wereemphasized, after the text was examined closely. The interpretation method can not be calledentirely objective, since the subjective views of the treaty partners, especially through evaluatingthe drafting history, played a vital role for the Court. It can be classified at this early stage ofthe Court's jurisdiction, as an objective/subjective method.c. Rules applied2433 HRLJ 145.'In doing so, it followed an established pattern of the International Court of Justice [1950]I.C.J.-Rep. 65.92In identifying the authentic language the Court applied the Article 33 of the ViennaConvention. The Court stays very close to the Vienna Convention when it describes itsinterpretation rules :"In interpreting Article 64, the Court will resort to traditional international law methods,relying both on general and supplementary rules of interpretation, which find expressionin Articles 31 and 32 of the Vienna Convention on the Law of Treaties. " 245The Court starts out with the textual meaning and concludes that the text does not entirelycover this question. Therefore it takes recourse to the traveaux preperatoire. This step is justifiedby a defining argument:"The Court's interpretation of Article 64, based on the ordinary meaning of its termsviewed in their context and taking into account the object and purpose of the treaty, isconfirmed by the preparatory work of the Convention. It can be relied upon as asupplementary means of interpretation... ".246The Court's use of rules of interpretation can therefore be described as being veryconservative at that point in time.2. No. 0C-2/82 - "entry into force and reservations" 247a. History of the opinionOn June 28, 1982, the Inter-American Commission on Human Rights submitted thefollowing question to the Court: "From what moment is a state deemed to have become party245Ibid. 3 HRLJ at 147.2463 HRLJ at 150.2473 HRLJ 153, 22 I.L.M. 37.93to the American Convention on Human Rights when it ratifies or adheres to the Convention withone or more reservations?" The Commission supplied two possible answers: "from the date ofthe deposit of instrument of ratification or adherence" or "upon the termination of the periodspecified in Article 20 of the Vienna Convention on the Law of Treaties."'The request for interpretation thus concerned the Articles 74 and 75 of the Conventionwhich read as follows:Article 741. This Convention shall be open for signature and ratification by or adherence of anymember state of the Organization of American States.2. Ratification of or adherence to this Convention shall be made by the deposit of aninstrument of ratification or adherence with the General Secretary of the Organization ofAmerican States. As soon as eleven states have deposited their instruments of ratificationor adherence, the Convention shall enter into force. With respect to any state that ratifiesor adheres thereafter, the Convention shall enter into force on the date of the deposit ofits instrument of ratification or adherence.3. The Secretary General shall inform all member states of the Organization of entryinto force of the Convention,Article 75This Convention shall be subject to reservations only in conformity with the provisionsof the Vienna Convention on the Law of Treaties signed on May 23, 1969.The Court rendered an opinion to the effect that the Convention enters into force for astate which ratifies or adheres to it, with or without a reservation, on the date of the deposit ofits instrument of ratification or adherence.b. Methods appliedThe Court emphasizes that'Ibid. at 154.94"modern human rights treaties in general, and the American Convention in particular,are not multilateral treaties of the traditional type concluded to accomplish the reciprocalexchange of the rights for the mutual benefit of the contracting States. Their object andpurpose is the protection of the basic rights of individual human beings, irrespective oftheir nationality, both against the State of their nationality and all other contractingstates" 249 .The Court draws this conclusion from evaluating the judgements rendered under theEuropean Convention." In its early stages the Court relied heavily on the European Court andCommission to support its decisions. It is remarkable that the Court did not follow the dynamicinterpretation method, which the European Court already used at that time. The method remainsobjective, again closely evaluating the text and the drafting history.c. Rules appliedThe Court mentions as usual Articles 31 and 32, starting with the textual approach bylooking at the language of the Article 74. It finds that the text is silent as to the particularquestion and therefore it takes recourse to its secondary means, the object and purpose of thetreaty. It realizes that the Article 75 with its reference to the Vienna Convention does not solvethe question but poses a number of new ones. First of all one has to determine what kind oftreaty the Convention is, in order to find the applicable provisions of Article 75. The Courtconcludes that sections (a) and (b) of Article 19 of the Vienna Convention are not applicable,but section c is. Therefore reservations are permissible as long as they do not interfere with the2493 HRLI at 162.'Austria v. Italy, Application No. 7881/60, 4 European Yearbook of Human Rights 116at 140 (1960).95object and purpose of the treaty. The Court has recourse to the preparatory work of theConvention in order to back up its conclusion. Furthermore, the Court states that only sections1 and 4 of Article 20 of the Vienna Convention can be relevant. Thus it also interprets themeaning of the Article 20 of the Vienna Convention and especially its relation to Article 75. Therules used do not differ from the previous observations regarding the first advisory opinion.3. No. OC-3/83 "death penalty" 251a. History of the opinionThe Inter-American Commission submitted on April 15, 1983 the following questions tothe Court:1. May a Government apply the death penalty for crimes for which the domesticlegislation did not provide such punishment at the time the American Convention onHuman Rights entered into force for said state?2. May a Government on the basis of a reservation to Article 4 (4) of the Conventionmade at the time of ratification, adopt subsequent to the entry into force of theconvention a law imposing the death penalty for crimes not subject to this action at themoment of ratification?The questions of the Commission concern Article 4 of the Convention. This reads asfollows:Article 41. Every person has the right to have his life respected. This right shall be protected bylaw and, in general from the moment of conception. No one shall be arbitrarily deprivedof his life.2. In countries that have not abolished the death penalty, it may be imposed only for the2514 HRLJ 339, 23 I.L.M. 32096most serious crimes and pursuant to a final judgement rendered by a competent court andin accordance with a law establishing such punishment, enacted prior to the commissionof the crime. The application of such punishment shall not be extended to crimes towhich it does not presently apply.3. The death penalty shall not be reestablished in states that have abolished it.4. In no case shall capital punishment be inflicted for political offenses or relatedcommon crimes.5. Capital punishment shall not be imposed upon persons who, at the time the crimewas committed, were under 18 years of age or over 70 years of age, nor shall it beapplied to pregnant women.6. Every person condemned to death shall have the right to apply for amnesty,pardon or commutation of sentence, which may be granted in all cases. Capitalpunishment shall not be imposed while such a petition is pending decision by thecompetent authority.The Court rendered the following opinion: the Convention imposes an absoluteprohibition of the death penalty and that consequently the Government of a state party cannotapply the death penalty to crimes which such a penalty was not previously provided for underits domestic law (concerning question 1) and that a reservation restricted by its own wording toarticle 4 (4) of the Convention does not allow the Government of a state party to extend bysubsequent legislation the application of the death penalty to crimes for which this penalty wasnot previously imposed.b. Methods appliedThe Court explicitly states that it is using the objective method of interpretation when itstates :"This method of interpretation respects the principle of the primacy of the text, that is,the application of objective criteria of interpretation. In the case of human rights treaties,moreover, objective criteria of interpretation that look to the texts themselves are moreappropriate than subjective criteria that seek to ascertain only the intent of the Parties.This is so because human rights treaties, as the Court has already noted, are 'not97multilateral treaties of the traditional type concluded to accomplish the reciprocalexchange of rights for the mutual benefit of the contracting States', rather 'their objectand purpose is the protection of the basic rights of individual human beings, irrespectiveof their nationality, both against the State of their nationality and all other contractingStates'. "252This statement of the Court shows that beginning with its third opinion all remainingvestiges of a subjective approach are thrown overboard. This passage from the opinion has the •quality of definition.c. Rules appliedThe Court examines closely its own rules of interpretation, Article 29 and 30 of theConvention, when it is interpreting Article 4. However the Court does not reach any new resultsin applying rules of interpretation. The rules used are consistent from the first advisory opinionrendered to the most recent.4. No. OC-4/84 "amendments to the naturalization provisions of the Political Constitution ofCosta Rica"'a. History of the opinionThis opinion is the first issued in response to a state that asked for the matching of its2524 HRLJ at 352.2535 HRLJ 161.98own legislation with the Convention.The Government of Costa Rica requested on June 28, 1983 an advisory opinion on thefollowing question: the provisions of several amendments to the political constitution of CostaRica were to be analyzed whether they are compatible with the Convention. The Articlesconcerned are Articles 14 and 15 of the Political Constitution of Costa Rica. Those could beinconsistent with the Articles 17, 20 and 24 of the Convention.The Court took recourse to the relevant judgements of international courts, which dealwith this question2m .In the advisory opinion of the Court some of the mentioned provisions were consideredto be discriminatory.b. Methods appliedThe Court's approach is entirely objective. The Court tries to defend the results thusreached stating:"...the Court is mindful of the margin of appreciation which is reserved to states whenit comes to the establishment of the requirements for the acquisition of nationality andthe determination whether they have been complied with. But the Court's conclusionshould not be viewed as approval of the practice which prevails in some areas to limitto an exaggerated and unjustified degree the political rights of naturalizedindividuals. 255"Thus the Court tries to defend its conclusion, which it had reached by using the objective'Among those are the Nottebohm Case, [1955] I.C.J. Rep. at 24.2555 HRLJ at 173.99method and not a dynamic approach, which might have altered the Convention to today'sunderstanding of the Conventions provisions.c. Rules appliedThe Court once again was occupied with discussing the rule for interpretation which ispart of the Convention, Article 29. Again no new results were discovered, which concern theapplication or the use of rules of interpretation. The extensive use of travaux preparatoires isnoteworthy, albeit an application of the standard rules of the Vienna Convention.5. No. 0C-5/85 "Compulsory membership in an association prescribed by law for the practiceof journalism"'a. History of the opinionThe Government of Costa Rica submitted the following question on July 8, 1985 to theCourt: is compulsory membership of journalists and reporters in an association prescribed bylaw for the practice of journalism permitted or included among the restrictions or limitationsauthorized by Articles 13 and 29 of the Convention?The legislation concerned the interpretation of Article 13 of the Convention. The questionarose whether this interpretation is inconsistent with Article 29 of the Convention.2567 HRLJ 74, 25 I.L.M. 123, 1985 Inter-American Yearbook of Human Rights at 1148.100The Court concluded that the law is incompatible with Article 13 when it restricts accessto news or when it prevents certain persons from joining the Association and consequentlybarring them from collecting and expressing themselves or imparting information.b. Methods appliedThe Court did extensive comparative work when it examined the meaning of Article 13.It had recourse to the European Convention."It is true, of course, that it is frequently useful,- and the Court has just done it- tocompare the American Convention with the provisions of other international instrumentsin order to stress certain aspects concerning the manner in which a certain right has beenformulated, but that approach should never be used to read into the Conventionrestrictions that are not grounded in the text. This is true even if these restrictions existin another international treaty."'The method followed throughout was objective, thus the Court still let cautiousnessprevail and again denounced explicitly the use of a dynamic approach. This must be understoodin the light of the fact that at this point no contentious case had yet been tried in front of theCourt and the Court was still quite uncertain about its position and its cooperation with theCommission.c. Rules appliedThe Court stayed close to the text, discussed again the Article 29 of the Convention and2577 HRLJ 82.101did not change the rules applied for the interpretation.6. No. OC-6/86 "The word laws in Article 30' 8a. History of the opinionThe Government of Uruguay asked for an advisory opinion on the extent of the word"laws" in Article 30 and delivered several possible answers with it. One, that "laws" refers onlyto legal norms passed by the legislature (formal sense) or two, that "laws" may be understoodin a material sense as a synonym for the entire body of law without regard to the procedurefollowed in creating such norms and the normative rank assigned to it within the hierarchicalorder of the particular legal system.This opinion involved the interpretation of Article 30 of the Convention.The restrictions that, pursuant to this Convention, may be placed on the enjoyment orexercise of the rights or freedoms recognized herein may not be applied except inaccordance with laws enacted for reasons of general interest and in accordance with thepurpose for which such restrictions have been established.The Court took the standpoint that "laws" means a general norm tied to the generalwelfare passed by democratically elected legislative bodies established by the constitution andformulated according to the procedures set forth by the Constitutions of the state parties for thatpurpose.2587 HRLJ 231, 1986 Inter-American Yearbook on Human Rights at 346.102b. Methods appliedIn stating that "the meaning of the word 'laws' in the context of a system for theprotection of human rights cannot be disassociated form the nature and origin of thatsystem.... "259, the Court determines the origin of human rights as being natural law. It isremarkable that the Court leaves the secure path of the text of the treaty to reach this conclusion.The Court denounces the subjective method, when it states that"the meaning of the word 'laws' in Article 30 cannot be disassociated from the intentionof all American States, as expressed in the Preamble to the Convention to consolidate inthe hemisphere within the framework of democratic institutions a system of personalliberty and social justice based on respect for the essential rights of man". 260The Court leaves for the first time the objective interpretation method and beginsinterpreting in a dynamic method:"The concept of laws referred to in Article 30, interpreted in the context of theConvention and in the light of its object and purpose, cannot be examined solely in termsof the principle of legality...In the spirit of the Convention, this principle must beunderstood as one in which general legal norms must be created by the relevant organspursuant to the procedures established in the constitutions of each State party and one towhich all public authorities must strictly adhere." 261Thus the method starts to change, when the Court interprets a human rights treaty.c. Rules applied2597 HRLJ 234.'Ibid. at 236.261Ibid. at 236.103The rules are as usual taken from the Vienna Convention. Even as the method change,the rules applied remain the same, which is not surprising, as the Court already used thegenerally recognized rules of international law.7. No. 0C-7/85 -"Enforceability of the right to reply or correction"'a. History of the opinionOn October 1, 1985, the Government of Costa Rica submitted the following question tothe Court:"Can it be assumed that the full and free exercise of the right protected by Article 14 (1)of the Convention is already guaranteed to all persons under the jurisdiction of the Stateof Costa Rica by virtue of the obligations assumed by our country under Article 1 of theConvention?"The Government linked a second question with it, in case the answer would be negative:"Does the State of Costa Rica have an international obligation under Article 2 of theConvention to adopt legislative or other measures that may be necessary to giveeffect to the right of reply or correction set out in Article 14 of the Convention?"Therefore the Court had to deal with the interpretation of Article 14 of the Convention:Article 141. Anyone injured by inaccurate or offensive statements or ideas 263 disseminated to thepublic in general by a legally regulated medium of communication has the right to replyor to make a correction using the same communications outlet, under such conditions as2627 HRLJ 33 1986 Inter-American Yearbook on Human Rights at 364.'The word "ideas" does not appear in the Spanish, Portuguese or French texts of thisprovision, which refer to "informaciones inexactas o agraviantes", "informcoes inexatas ouofensivas" and to "donnees inexactes ou des imputations diffamatoires."104the law may establish.2. The correction or reply shall not in any case remit other legal liabilities that mayhave been incurred.3. For the effective protection of honour and reputation, every publisher, and everynewspaper, motion picture, radio, and television company, shall have a personresponsible who is not protected by immunities or special privileges.The Court rendered the following judgement:Article 14 (1) recognizes an internationally enforceable right to reply or to make a correctionwhich under Article 1 (1) the State parties have the obligation to respect and to ensure the freeand full exercise thereof to all persons subject to their jurisdiction.If the rights guaranteed under Article 14 (1) are not enforceable the State party has the obligationunder Article 2 to adopt the legislation or the measures necessary to give effect to this right.The word "law" in Article 14 (1) is related to the obligations of the state parties underArticle 2. However if a measure imposes any restriction on the right recognized by theConvention, it has to be adopted in the form of a law.b. Methods appliedThe Court was able to refer in this matter widely to its previous second advisory opinionand saw no need to change its then discovered results. The method used in this very shortopinion is therefore genuinely objective. This result is not surprising. Since the opinion has aspecial nature, due to the fact that a previous opinion is being used to support the Court'sarguments, it is logical that the interpretation method from the previous opinion is used, whichwas then genuinely objective. Therefore it was not to be expected that the Court would repeatits first steps towards a dynamic approach, as observed in the sixth opinion.105c. Rules appliedThe Court uses the rules of the Vienna Convention, as it did in the second opinion. Sincethe Court repeats most of its arguments from this previous opinion, it was not to be expectedthat the Court would use new approaches.8. No. OC-8/87 -"Habeas Corpus in emergency situations"'a. History of the opinionThe Commission submitted the following question to the Court on October 10, 1985:"Is the writ of habeas corpus the legal basis of which is found in Articles 7 (6) and 25(1) of the Convention one of the judicial guarantees that pursuant to the last clause ofArticles 27 (2) of the Convention may not be suspended by a state party to theaforementioned American Convention?The Court had to interpret Articles 25 (1) and 7 (6) when read in conjunction with thefinal clause of 27 (2). Again the question arose whether the restrictions regarding theinterpretation of Article 29 are applicable or not.The Court rendered the following judgement: given the provisions of Article 27 (2) thelegal remedies guaranteed in Articles 7(6) and 25 (1) of the Convention may not be suspendedbecause they are judicial guarantees essential for the protection of the rights and freedoms whosesuspension Article 27 (2) prohibits.2649 HRLJ 94, 27 I.L.M. 512, 1987 Inter-American Yearbook on Human Rights at 750.106b. Methods appliedIn the beginning of the merits of this opinion the Court stayed very close to the text. Indoing so, the Court tries to establish a protection for the rights of the individual, just by usingthis textual approach. The Court cites the Article 31 (1) of the Vienna Convention andconcludes: "Article 27 (2) must therefore be interpreted 'in good faith' and keeping in mind the`object and purpose' of the American Convention..."'. This objective method is howeverpushed aside, when the Court starts to examine the real world scenario: "Those who drafted theConvention were aware of these realities (that is abduction of people), which may well explainwhy the Pact of San Jose is the first international human rights instrument to include among therights that may not be suspended essential juridical guarantees for the protection of non-degorable rights".' This conclusion is remarkable, as the drafting history does not mentionsuch considerations. The Court starts to make its judgements based on the evaluation of the reallife situation, which cannot be classified as anything other than the dynamic approach.c. Rules appliedThe Court evaluates the interpretation rule of Article 29, which is part of the Convention.However, it reaches no new conclusions concerning the rules applicable for interpretation.2659 HRLJ at 97.2669 HRLJ at 102.1079. No. OC-9/87 -"Judicial guarantees in the state of emergency"'a. History of the opinionOn September 17, 1986, the Government of Uruguay submitted to the Court thefollowing question. The Court should interpret the scope of the Convention's prohibition of thesuspension of the judicial guarantees which are essential in order to protect those rights. Inparticular the government wanted to know, which of these judicial guarantees are considered"essential" by the Court. In addition the government was interested in the relationship of Article27 (2) on one side and Articles 25 and 8 of the Convention on the other side. The Court wastherefore concerned with interpreting the scope of Article 27(2). This Article reads as follows:1. In time of war, public danger, or other emergency that threatens the independence orsecurity of a State Party, it may take measures derogating from its obligations under thepresent Convention to the extent and for the period of time strictly required by theexigencies of the situation, provided that such measures are not inconsistent with its otherobligations under international law and do not involve discrimination on the ground ofrace, colour, sex, language, religion, or social origin.2. The foregoing provision does not authorize any suspension of the following articles:[3,4,5,6,9,12,17,18,19,20,23] or the judicial guarantees essential for the protection ofsuch rights.3. Any State Party availing itself of the right of suspension shall immediately inform theother State Parties, through the Secretary General of the Organization of American States,of the provisions the application of which it has suspended, the reason that gave rise tothe suspension, and the date for the termination of such suspension.Since the question touches a similar topic which was discussed in a previous opinion ofthe Court, the Court relied in its arguments in this ninth opinion heavily on its eighth opinion.This method, repeating arguments from a previous opinion, has been used before, when in theHRLJ 204, 1988 Inter-American Yearbook on Human Rights at 892.108seventh opinion the Court relied on its second opinion. The Court began its consideration ofwhat judicial guarantees are to be considered essential by evaluating the obligations of everyState party. The Court just repeated its definition from the eighth opinion for the proceduralinstitution tr, amparo 268. It also referred back to a judgement, the Velasquez Case, in order topoint out that State has the obligation to provide effective judicial remedies. The Court had beenexplicitly asked to interpret what the title of Article 8 in the Spanish version means. The Englishtranslation for this title is "judicial guarantees". In the English version the term "right of a fairtrial" had been used. The Court came to the conclusion that the Spanish title of the provisionis misleading as the provision does not recognize any judicial guarantees, "strictly speaking".Article 8 does not contain a specific judicial remedy, but rather the procedural requirements thatshould be observed "in order to be able to speak of effective and appropriate judicial guaranteesunder the Convention".The Court rendered the following judgement: the essential judicial guarantees which arenot subject to derogation according to Article 27 are habeas corpus, amparo, and other effectiveremedies before judges or competent tribunals which are designed to guarantee rights andfreedoms whose suspension is not authorized by the Convention. The Court classified those"judicial guarantees" as being "essential" and not being subject to suspension as judicialprocedures which are inherent to representative democracy as a form of Government. They haveto be provided for in the laws of the state parties and they have to be suitable for guaranteeing2681n Spanish-American law s constitutional remedy to guarantee the inviolability of the rightsand guaranties set forth in the Constitution. Originally a document issued to a claimant of landas a protection to him, until a survey can be ordered and the title of possession issued by anauthorized commissioner. Black's Law Dictionary, supra note 101 at 84.109the full exercise of the rights referred to in Article 27 (2) of the Convention. Further, it statedthat the above mentioned judicial guarantees should be exercised within the framework and theprinciples of the due process of law expressed in Article 8 of the Convention.b. Methods appliedThe Court used one interesting new feature in this opinion. It does not really answer thequestion it was asked by Uruguay, but rather rearranges the question the way it would like toanswer it. Otherwise this opinion is comparable to the seventh opinion, where no newapproaches to interpretation could be taken, as the connection to a previous opinion was soclose.c. Rules appliedThe rules used can be reduced to two. Next to the technical rule about the authenticlanguage the object and purpose rule prevails throughout the entire decision. As the opinion isvery close to the eighth opinion in its argumentation, no new rules have been used.10. No. OC-10/89 "Interpretation of the American Declaration of the Rights and Duties of Manwithin the framework of Article 64 of the American Convention on Human Rights"."269 11 HRLJ 118, 29 I.L.M. 379, 1988 Inter-American Yearbook on Human Rights at 882.110a. History of the opinionThe Government of the Republic of Columbia requested on February 17, 1988 anadvisory opinion on the following question."Does Article 64 authorize the Inter-American Court of Human Rights to renderadvisory opinions at the request of a member state or of one of the organs of theOAS regarding interpretation of the American Declaration of the Rights and Duties ofMan, adopted by the Ninth International Conference of the American States in Bogotain 1948?"The Government added some interpretation of this question of its own. It argued that itdoes not see the American Declaration as a treaty. Therefore the Government wanted to knowthe judicial status of the Declaration and whether the Court has jurisdiction to interpret theDeclaration. The Court received observations of several Governments on this matter. Most ofthe governments argued that the Declaration did not constitute a treaty.The Court examined the legal definitions given in the two Vienna Conventions from 1969and 1986, Article 2 in both instances, and concluded that the Declaration cannot be regarded asa treaty according to those two instruments. It then examined the drafting history of theDeclaration and found that at the time it was adopted it was understood that the Declarationshould not be a treaty. However, the Court stated that the fact that the Declaration is not a treatydoes not imply that the Court does not have the power to interpret it. It argues that theDeclaration is mentioned twice in the Convention, in the Preamble and in Article 29. The Courtcites the International Court of Justice: "an international instrument must be interpreted andapplied within the overall framework of the juridical system in force at the time of the111interpretation."' It added that it could only interpret the OAS-Charter when it could interpretthe Declaration as well. Therefore the Court ruled that it can interpret the Declaration.b. Methods appliedThis opinion is remarkable in that the Court finally only applies the dynamicinterpretation method. It stated that: "The American Declaration has its basis in the idea that"the international protection of the rights of man should be the principal guide of an evolvingAmerican law."' Further it adds: " The evolution of the here relevant "inter-American law"mirrors on the regional level the developments in contemporary international law and especiallyin human rights law, which distinguished that law from classical international law to a significantextent."" The Court justifies this result by referring to the will of the treaty partnersthemselves and creates the new term of "authoritative " interpretation:"Hence it may be said by the means of an authoritative interpretation, the member statesof the Organization have signalled their agreement that the Declaration contains anddefines the fundamental human rights referred to in the Charter."'It is important to note that the Court has given up the objective interpretation method.Henceforward the Court applies a dynamic approach.'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] I.C.J. Rep. 1971 at 16.2' 1 11 HRLJ at 124.272Thid ."Ibid. at 126.112c. Rules appliedThe Court followed its canon of looking at the text, the travaux preparatoires, and thesystematic order of the Declaration; therefore all classic codified rules were applied.11. No. OC-11/90 -"Exceptions of the exhaustion of domestic remedies"'a. History of the opinionThe Inter-American Commission submitted two questions to the Court on January 31,1989:"Does the requirement of the exhaustion of internal remedies apply to an indigent,who because of economic circumstances is unable to avail himself of the legalremedies within a country?"In case that this requirement would be waived by the Court, the Commission wanted toknow, what kind of criteria it should consider when it determines the admissibility of such acase. The Commission argued that discrimination based on "social conditions" (Article 1(1))appears to take place.The second related question read as follows:"Does the requirement of the exhaustion of internal legal remedies apply to anindividual complainant, who because he is unable to retain representation due to ageneral fear in the legal community cannot avail himself of the legal remediesprovided by law in a country?"2'4 12 HMI 20, 1988 Inter-American Yearbook on Human Rights at 886.113Again, in the case that this requirement would be waived the Commission demanded toknow the criteria it should apply for the admission of such a case. The Commission argued herethat in several cases the plaintiffs had pointed out that they could not obtain legal advice as"lawyers did not accept cases which they believed could place their own lives and those of theirfamilies in jeopardy. ""The questions submitted called for an interpretation of Article 46:1. Admission by the Commission of a petition or communication lodged inaccordance with Articles 44 or 45 shall be subject to the following requirements:a. that the remedies under domestic law have been pursued and exhausted inaccordance with generally recognized principles of international law.2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicablewhen:a. the domestic legislation of the state concerned does not afford due process of law forthe protection of the right or rights that have allegedly been violated;b. the party alleging violation of his rights has been denied access to the remediesunder domestic law or has been prevented from exhausting them;...The Court ruled that according to the text the exemption form exhausting the domesticremedies can only be found in Article 46 (2). However in order to understand this Article it hasto be read in conjunction with Article 1 (1), 8 and 24. Therefore indigence alone does not resultin an automatic waiver of the exhaustion of domestic remedies.The second question is answered by taking into account the same criteria. The remediesa state has to supply must be "suitable to address an infringement of a legal right" and "capableof producing the result for which [they were] designed.X 2'6Concerning the question which was added on to both questions, as to which criteria the275 12 HRLJ at 21.276The Court cites here its own decision in the Velasquez Rodriguez Case, 9 HRLJ 222.114Commission should apply, the Court leaves it open to the Commission to make its owndetermination. However the Court warns the Commission that it has full power to review anysuch decision. Further, the Court shifts the burden of proof. The plaintiff does not have to provewhy he was unable to exhaust local remedies; instead, the State has to prove that the domesticremedies in fact existed and that they were not exhausted. Once the State party has shown theexistence of such remedies, the burden of proof again shifts to the complainant, who must thendemonstrate the exceptions provided for in Article 46 (2) are applicable.b. Methods appliedThe Court followed its flexible dynamic approach in this opinion. The text is the basisfor the interpretation, however taking into account the object and purpose of the treaty prevailsover a strict literal interpretation. The already well known form of the shifting of the burden ofproof away from the individual towards the government was discussed in the Fairen GarbiCase'. Special emphasis was given in this opinion to systematic interpretation, as Article 46was read in conjunction with a number of other Articles. In general the dynamic approachappears to be an established pattern.c. Rules appliedThe Court used again its established canon of interpretation rules in using the rules'See above Chapter Four, I, A, 3.115supplied by the Vienna Convention on the Law of Treaties.12. No. OC-12/91 -"Compatibility of draft legislation of the Republic of Costa Rica with Article8(2) (h) of the Convention"'a. History of the opinionThe Government of Costa Rica submitted a request for an advisory opinion to the Courton February 22, 1991. The question concerned draft legislation, which was intended to amendand alter the Code of Criminal Procedure.The Government demanded to know whether the establishment of a Court of CriminalAppeals and several other proposed amendments to the Code would fulfil the requirement setout in Article 8 (2) (h) of the Convention dealing with the right to appeal. Furthermore, theCourt was asked to interpret the term criminal offenses. The Government argued that Article 8(2) (h) only refers to criminal offenses ("delitos"). The Government intended to know, what ruleshould be applied to lesser violations of criminal law ("contravenios"). The Article in questionreads as follows:Article 8 Right to a Fair Trial• • •2. Every person accused of a criminal offense has the right to be presumed innocent solong as his guilt has not been proven according to the law. During the proceedings, everyperson is entitled, with full equality, to the following minimum guarantees:h. the right to appeal the judgement to a higher court.2'8 13 HRLJ 149.116The Court received observations from several governments. Among those was theobservation of the Government of. In this observation the Government of Uruguay recommendedto the Court not render an advisory opinion at all. It relied with its arguments on the sixthadvisory opinion of the Court when pointing out that the Court had interpreted the word "laws"then "...[to be] only legal norms that have been approved by the legislative branch andpromulgated by the executive branch qualify as proper subjects of an advisory opinion."' TheGovernment of Costa Rica replied to this observation that in Article 30 a different kind of lawis meant than in Article 64. The Commission supplied the Court with nine cases, whereindividuals claimed that they were deprived from the right of appeal to a higher Court in CostaRica. The Court pointed out, citing its first advisory opinion, that it does not have to render anopinion. It added that the word "law" has a different meaning in Article 64 and Article 30. Itinvoked its fourth opinion ("proposed amendments"), where it held draft legislation admissible.This conclusion is logical. Otherwise the Government would be forced to violate the Conventionby the formal adoption and possibly even application of the legislative measure, which wouldthen be deemed to permit the appeal to the Court.The Court refused to render an advisory opinion as it was clear that any decision wouldlimit its contentious jurisdiction. The questions submitted by Costa Rica in the guise of requestfor an advisory opinion would in reality be a determination of contentious matter not yet referredto the Court, in the form of the nine cases before the Commission.b. Methods applied279Thid.117The Court was forced to take recourse to the objective method, as the Court was forcedto rely on previous opinions to refuse to render an opinion. It therefore closely examined the textof the treaty and refused to accept the intentions of the treaty partners as arguments. It thereforedenounced the use of the subjective method.c. Rules appliedThe Court exclusively stated in evaluating the different nature of the term "law" inArticle 30 and 64 that "...the ordinary meaning of terms [of a treaty] cannot of itself becomethe sole rule, for it must always be considered within its context and, in particular, in the lightof the object and purpose of the treaty."' The Court thus applied the rules in the ViennaConvention in its appropriate way. Whenever the result achieved is in contradiction to logicsecondary means of interpretation have to be considered. The Court was not to be expected touse new rules of interpretation, as again the Court relied heavily in its argumentation on aprevious advisory opinion. Therefore the rules used in this previous opinion were used onceagain.II. By the Inter-American Commission on Human RightsA. Decisions prior to the adoption of the Vienna Convention on the Law of Treaties, May 23,1969280thid.1181. Communications: Repatriated Haitian citizens and the Beauvoir-Florez Case'a. History of the communicationsIn May 1966 several groups of Haitians, a total number of 103 persons, entered theDominican Republic without complying with the legal provisions of immigration. After livingthere for periods of up to four months they were returned across the border to Haitian territory,where some of them were shot to death. The Commission's request for information or an on siteinvestigation was turned down as an international press conspiracy against the people of Haiti.The Government of Haiti alleged the Commission was attempting "to set itself up assupranational jurisdiction and arrogate to itself the power to control, amend, or condemn thedecisions and the orders of national jurisdiction." 282Mr. Emanuel Beauvoir and Marie Therese Beauvoir were sentenced to death for thecrimes of treason, an attempt against the security of the state, murder and attempted murder.The sentence was not rendered by a court but by a military commission. After a request forinformation in this matter, the Haitian Government pardoned both individuals.b. Methods applied2810ASOR, 0EA/Ser.L/II.16, Doc. 2 Rev., (1967) and L. Sohn & T. BuergenthalInternational Protection of Human Rights (Indianapolis: Bobbs-Merrill, 1973) at 1307-1313.282Sohn/Buergenthal, supra note 281 at 1310.119The cases are typical of the time period before the amendment' to the OAS-Charterand the adoption of the Convention. The Commission had to explore and stabilize its ownpowers through interpretation. The Commission did not deal with the interpretation of normativequestions as to the meaning of a certain substantive provisions. Instead, they were occupied withinterpreting procedural questions, such as whether there is a right for on site investigation orwhether the Commission has any kind of jurisdiction, which was challenged in the first case.The interpretation method of this time is a pure objective approach. The Commission points outand cites provisions of the OAS-Charter and of its own rules of procedure, which were adoptedby the OAS-Council of Ministers. In doing so the aim of the Commission is to pressure Haitiinto complying with the principle "pacta sunt servanda", which is most easily achieved throughthe objective method. The way Haiti understood its own reservation could not be accepted as anexcuse, as the plain meaning of the text prevails over the subjective intentions of the treatypartner, when a reservation is being interpreted.c. Rules appliedThe main rule applied is the ordinary meaning rule. Materials beyond the plain text ofthe Charter and the rules of procedure are not considered. This rule, later to become Article 31of the Vienna Convention, is the basis of every interpretation in international law.The interpretation methods and rules can thus be described as being very simple, due tothe fact that a rebellious state had to be forced to comply with the provisions of a treaty to which"See above, Chapter Three, II, E, 1, a.120it had adhered. This approach was very successful, as the second case in this time period shows.In order to avoid any further decisions of the Commission, which would have stressed thepowers of the Commission and the obligations of Haiti under the Charter, Haiti pardoned andreleased the obviously illegitimately convicted family.2. Country reports: Haiti 19632"a. History of the reportDuring its first eight sessions, beginning in 1961, the Commission received numerouscommunications or complaints regarding serious violations of human rights by the HaitianGovernment. The Commission corresponded with Haiti on this matter over the following twoyears. In its initial responses Haiti supplied some information on the cases mentioned; later itsummarily answered that every accusation was false and unfounded. During its fifth session theCommission decided to undertake an on site investigation and hold part of its session in Haiti.Haiti declined a request of the Commission on the grounds of interference with internal affairs.The Commission than interpreted its Statute in pointing out that according to the Article 11(c)the Commission has the power to go to an American country. However it also concluded thatthe Commission did not have the power to enforce this decision when a government denied itsconsent. Therefore it closed the matter for the time being. A second attempt of the Commission"OASOR, 0EA/Ser.L/V/11.8, Doc. 5, (1963) and Sohn/Buergenthal, supra note 281 at1293-1306.121after the sixth session in 1963 to gain the consent of Haiti for an on site investigation was turneddown with the same arguments, adding the concern regarding an international press conspiracyagainst Haiti. The Commission finally informed the Council of the Organization of AmericanStates by filing a country report. The country report detailed the violations of the HaitianGovernment and pointed out the state of human rights in that country.b. Methods appliedIn addition to the interpretation of procedural questions, here the right to conduct an onsite investigation, which was handled with the same objective approach as above in thecommunications, the report itself contains an interpretation of the meaning of the substantiveparts of the American Declaration. The method used here is again a pure objective approach inpointing out the plain meaning of the text, and in matching the violations done by Haiti with theindividual terms in the Declaration.c. Rules appliedThe rules used in the interpretation of the terms of the Declaration in the report can bereduced to one rule, the ordinary meaning rule, which was used also in the communications andwas discussed above.B. Decisions in between the adoption of the Vienna Convention 23.5.1969 and the first122judgement of the Court 22.7.19811. History of the "baby boy" case"The United States Supreme Court limited the full regulatory power of the state to prohibitabortion to the last trimester of pregnancy.' Several years after this decision Dr. KennethEdelin was convicted of manslaughter for performing a late term abortion. This conviction wasoverturned by the Massachusetts Supreme Judicial Court on grounds of insufficient evidence ofthe viability of the fetus or of life outside the womb, findings necessary to go to a jury on theissue of guilt beyond a reasonable doubt of wanton or reckless conduct resulting in death. Onemonth later, on January 19, 1977 a petition was filed with the Commission on behalf of the"baby boy" aborted in the Edelin case. The petition alleged violations of rights recognized bythe American Declaration of the Rights and Duties of Man: Article I (right to life), Article II(equality), Article VII (special protection for children), Article XI (preservation of health). Theseviolations were alleged to have begun with the Wade and Bolton cases which lay the foundationfor the fact that the State of Massachusetts through its Court prevented Dr. Edelin from beingpunished for his acts.The United States failed to respond to the request of the Commission for informationwithin the six month period, however they responded shortly thereafter. The response first of'Case 2141 (United States of America) (1981) , Inter-Am. Comm. H.R. Res. No. 23/81,(1981) 2 HRLJ 110."Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973).123all raised the question of non exhaustion of domestic remedies via an appeal to the SupremeCourt. Secondly the United States pointed out that according to the preparatory work it wasunderstood during the time of the drafting of the Declaration that the right of life was not to beextended to the unborn. In addition the American Convention, to which the United States is notparty, uses different language in order to include the right to life from the moment ofconception. Furthermore the United States argued that even during the drafting of the AmericanConvention it was understood that the states should retain the right to allow abortion in a varietyof cases.Four Members of Congress of the United States requested an advisory opinion in thismatter. This request was rejected as the Members of the U.S.Congress are not among thepersons or organs mentioned in Article 112 of the OAS-Charter.Concerning the exhaustion of legal remedies it was easy for the Commission to rule thatthe local remedies had been exhausted. State court decisions are subject to appeal by either anappeal or by writ of certiorari. Both are limited to specific situations, none of which wereapplicable in this case.The delay of the answer of the United States Government was considered to be justifieddue to the legal, moral and scientific issues disputed in this case.The Inter-American Commission concluded that the decisions of the U.S. Supreme Courtand of the Supreme Judicial Court of the State of Massachusetts and the actions of Dr. Edelindid not constitute a violation of the American Declaration of Rights and Duties of Man.2. Methods applied124Even though this decision was being rendered very shortly before the first judgement ofthe Court, it appears to be the best example of the interpretation methods and rules used duringthe period covering the time between the adoption of the Convention and the first judgement ofthe Court. First of all, it includes the problem that the American Convention, at the time thepetition was filed, was not yet in force. The Commission had thus to address the problem ofinterpretation of similar provisions in two different documents, in this case, the Convention andthe Declaration. Secondly it causes the problem that the state concerned, here the U.S., did notadhere to the Convention, but did recognize the jurisdiction of the Commission under theDeclaration.Beginning with a procedural question, the Commission considered its own ruleconcerning the six month reply period to be flexible, as the United States did not reply to therequested information in time. This approach may be considered unique in international law, asin any national legal system deadlines are used extensively as weapons to influence the outcomeof judicial decisions. In the case concerned, the presumption of the truth of the facts describedby the petitioner could not be used as a penalty against the United States, since the facts werenot in controversy. The petition was directed towards the interpretation of legal issues.Concerning the substantive part of the petition, the Commission begins with an objectiveapproach, exploring the text of the Declaration. After realizing that the text does not answer thequestion at issue, the Commission takes recourse to the travaux preparatoire and tries todetermine the understanding and intention of the treaty partners at the time the treaty wasconcluded. Thus the second approach of the Commission is a subjective one. The discoveredresult is that the preparatory work, most of it only in an official Spanish version, is very125contradictory; the Commission comes to the conclusion "that the conference faced the questionbut chose not to adopt language which could clearly have stated that principle [protection fromthe moment of conception]" . 287The final approach is in looking in a dynamic manner at the Declaration. This is doneby arguing that the Convention might be used as an element for the interpretation of theDeclaration. Since the Convention was not known at the time the Declaration was being adopted,it is not a subjective approach and as the Convention is not part of the text of the Declaration,it is not an objective approach. Using norms which have evolved in the course of time for theinterpretation of a treaty was classified above as dynamic interpretation. The Commissioninterpreted the provisions in the Convention with the help of its preparatory work and came tothe conclusion, that "the Convention was not intended to modify the concept of the right of lifethat prevailed in the Declaration". 2" Furthermore it denounced the possibility of an implicationof the Convention as a mean of interpretation for the Declaration, therefore denouncing thedynamic interpretation method.All other Articles of the Declaration, which were allegedly breached by the United States,had no direct relation to the petition.3. Rules appliedWithout naming Articles 31 and 32 of the Vienna Convention on the Law of Treaties,2872 HRLJ at 119.288thid126both were followed throughout the decision. The Vienna Convention was not yet in force,though it was known to international adjudicatory bodies. The Commission began with theevaluation of the plain meaning of the text. When the Commission reached the conclusion thatthe question could not be answered by merely evaluating the text, it took, according to Article32, recourse to the travaux preparatoires. However the Commission had to realize that thetraveaux preperatoire was ambiguous too. While examining the text, the Commission inflictedthe rule in Article 33 as they decided that the Spanish version of most of the preparatory workwas the only authentic one. The use of material which is only related very distantly to the treaty,such as the Convention, was denounced as adequate means of interpretation.C. Decisions after the first judgement of the Court 22.7.19811. As organ of the conventiona. Relationship between the Commission and the CourtAfter the Court was constituted in. 1979, the relationship between the Court and theCommission can be best described as noncooperative. When Costa Rica brought its firstcontentious case to the Court, Viviana Gallardo, the Court had to refer the case to theCommission, as shown above. However the Court kept the case on its list, until the Commissionrendered a final decision and thus tried to keep control over the matter.The second stage can be described as the advisory opinion stage. In 1982 the Commission127finally addressed the Court in order to receive an advisory opinion. However, the real purposeof the Commission was to find a way to compel Guatemala to suspend the death sentenceshanded down by special courts that were created outside the regular judicial apparatus andoperated without due process of law. Those sentences were imposed for offenses which werepreviously not punishable by death. Guatemala had made some reservations to the Conventionregarding this matter and had not adhered to the contentious jurisdiction of the Court. Thereforethere was no chance that this case would reach the stage of the Court. The Court finallyrendered its third advisory opinion'.The third stage can be called cooperation. In 1986 the Commission finally submitted aseries of three cases to the Court'. The majority of those cases involved the disappearanceof people in Honduras, where the human rights situation was extremely serious. Thedisappearance of people was not mentioned in the Convention and the Commission was stuckwith gathering evidence. The main problem for the Court was that the Commission did notcomply with its own rules of procedure when submitting the case. The Commission interpretedthe Convention to the effect that the Court was not an appellate tribunal and therefore hadlimited jurisdiction. This would prevent the Court from reviewing certain procedural aspects ofthe case, including all those that were raised by Honduras. The Court did not follow thisinterpretation and argued that it was competent to decide all matters which relate to theinterpretation and application of the Convention. This includes all procedural matters.'See above Chapter Four, I, B, 3.290velasquez Rodriguez, Fairen Garbi and Godinez Cruz, see above Chapter Four, I, A, 1to 3.128b. Methods appliedThe methods applied in all six cases which so far have been submitted to the Court bythe Commission are identical to the ones of the Court.c. Rules appliedThe rules used by the Commission in these six cases are not different from the ones usedby the Court.2. As organ of the OASa. History of the Stephen Schmidt case291Stephen Schmidt, a U.S. citizen, after having resided in Costa Rica for ten years, dulyauthorized by the public authorities of that country, was working for a weekly Englishpublication. In April 1980 his case was brought to the attention of the Costa Rican ProsecutingOffice by the "Colegio de Periodistas" that Mr. Schmidt was a presumed perpetrator of thecrime of illegal exercise of a profession. According to Articles 22, 23, 24, 25 and 27 of theBasic Law of the "Colegio de Periodistas" in conjunction with Article 313 of the criminal code291Case 9178 (Costa Rica) (1984), Inter-Am. Comm. H.R. Res. 17/84, (1985) 6 HRLJ 211.129of Costa Rica, the exercise of journalism is limited to individuals who are members of theAssociation "Colegio de Periodistas", after they are granted a license. Stephen Schmidtexhausted the appeals of the domestic law of Costa Rica. On June 3, 1983 he was sentenced tothree month imprisonment and his sentence was ordered to be registered in the judicial registerof delinquents. Therefore he was never again eligible to be enroled into the "Colegio dePeriodistas", as he now had a criminal record.The Government of Costa Rica pointed out that freedom of speech was not restrictedthrough the Basic Law of the "Colegio de Periodistas" and therefore it was in conformity withthe American Convention, as it did not prevent Mr. Schmidt from writing columns, it justprevented him from acting as the editor in chief, for which he had to be a member of theassociation. Furthermore the Government expressed the point of view that the petition had to beconsidered moot as Mr. Schmidt was no longer a resident of Costa Rica.The Commission concluded that the petition was not moot as the reason for Mr. Schmidtleaving Costa Rica was the fact that he could not exercise his profession of journalism there, ashe could not become a member of the professional association. It furthermore concluded that thelaw establishing the "Colegio de Periodistas" as well as the decision by which Mr. Schmidt wassentenced to three month imprisonment did not constitute a violation of Article 13 of theAmerican Convention. The decision led to an advisory opinion of the Court requested by theGovernment of Costa Rica.''Compulsory membership in an association prescribed by law for the practice of journalism(Arts. 13 and 29 American Convention on Human Rights) (sub nom. Costa Rican Law for thePractice of Journalism) (Costa Rica) (1985), Inter-Am. Ct. H.R. Advisory Opinion 0C-5/85,Ser. A No. 5, para.73, Annual Report of the Inter-American Court of Human Rights: 1985,OEA/Ser.L/V/ III.12/doc.13 (1985) 19, 25 I.L.M. 142, (1986) 7 HRLJ 73.130b. Methods appliedThe question the Commission had to answer this case was whether the compulsorymembership in the association constituted a violation of the principle of freedom of thought. TheCommission held that such an obligatory membership does not constitute a breach of Article 13of the Convention. In order to reach this result, the Commission used an objective method inexploring the text and its implications. Thus the methods of the Commission when operating asan organ of the OAS are not different from the ones used as an organ of the Convention. Thisis not surprising as the same people are operating under both settings and one of the features ofthe Commission is consistency.c. Rules appliedThe Commission used, without mentioning it, the ordinary meaning rule of Article 31of the Vienna Convention. In referring to the implied meaning of the Article 13, small stepstowards the object and purpose rule were taken. In general there are no differences between therules of interpretation used by the Commission today and by the Court, even when theCommission is working as the Organ of the OAS and not as organ of the Convention.131CHAPTER FIVE: ConclusionThe question of interpretation is central to the functioning of any judicial institution. Allsuch institutions develop their preferred mode or technique of interpretation. At the time ofwriting this thesis, the Inter-American Court has developed the greater part of its jurisprudencethrough the medium of advisory opinions rather than through the exercise of its contentiousjurisdiction. The number of advisory opinions to date is twelve, the number of cases with finaldecisions is four, and four cases are still pending'''.The lack of the use of the Court's contentious jurisdiction appears to be due to a varietyof factors. They may be broken down into three categories: first, the problems which areinherent in developing the international protection of human rights within the international legalsystem; second, the political and social problems of much of the Western Hemisphere; and,finally, problems in the structure of the Convention itself.The problem in developing a system of international human rights protection lies first ofall in the fact that states guard their national sovereignty. The only limits imposed upon a state'scompetence in the ordering of their internal affairs are through norms of international law.Through international legal norms, certain matters are transferred from domestic to internationaljurisdiction. Other states now may legitimately demand compliance by a state in breach, whereasotherwise other states are excluded from intervening within the field of state competence. Thisproblem becomes clearly evident in the low number of ratification of the Inter-American293AS of December 11, 1991: cases closed are Viviana Gallardo, Velasquez Rodriguez,Godinez Cruz and Fairen Garbi/Solis Corrales. Cases pending are Aloeboetoe, Gangaram-Panday, Neira Alegria and Bustios and Rojas. See also Appendix 1.132Convention, especially by states whose Governments tend to have horrible human rights records.It is even more clearly reflected in the low number of submissions to inter-state action.The Court also suffers from the unwillingness of states to submit legal issues tointernational adjudication'. One of the most significant state concerns is the fact thatinternational adjudication may not be predictable. The predictability of international adjudicationwould increase, however, if methods of interpretation and their rules were to be evident to thestates concerned and followed by the respective adjudicative bodies. The Vienna Convention onthe Law of Treaties and the huge number of textbooks, treatises and articles written on thisissue, including this thesis, are intended to overcome this state concern. At least some patternsin international adjudication are distinguishable.Secondly, the political and social conditions in the Americas influence the use of theCourt to a large extent. In contrast to Europe, where until the admission of the former socialistcountries the political homogeneity and the social organization within the member states of theCouncil of Europe provided a relatively stable basis for the protection of human rights, theAmericas lack these features. In the past the political landscape in the Americas has ranged fromliberal democracy to totalitarian dictatorship. The obsession with a military culture in a largenumber of Latin American states, with its emphasis on conformity and obedience, contributed294For many years, the International Court of Justice has experienced the same problem. TheUnited States withdrew from proceedings initiated by Nicaragua before the International Courtof Justice on January 18, 1985 by the help of suspension of their submission to the jurisdictionof the Court. 24 I.L.M. 246 (1985). This power, to withdraw jurisdiction, resides in the UnitedStates not only with the executive, but also with the legislative power: Antolok v. United States,where Congress withdrew the jurisdiction. 873 F.2d 369 (D.C. Cir. 1989) and (1990) 14 SuffokTransnational Law Journal 325-335.133in some of the worst human rights abuses of modern times."The lack of trust between American states themselves and in addition the lack of trustbetween the regimes and their own people has not encouraged the evolution of appropriatehuman rights protection mechanisms.Lawyers' who have tried to bring forward cases' and witnesses' of such humanrights abuses have become objects of persecution themselves. This obviously discourages othersfrom even bringing their complaint in front of the court. Poverty, lack of education and lack ofaccess to legal advice services within most of the OAS member states make it unlikely thatindividuals whose rights have been violated will resort to the Commission, and ultimately to theCourt, for their protection or even for redress. Little can be done in the short term to addressthese concerns. The Court could through promotion make its existence more known among thepeople of the Americas. One judge of the Inter-American Court, Thomas Buergenthal, hassuggested that in order to remedy the situation the Court should be made an organ of the OAS""The Truth Unearthed" Time (2 November 1992) 18. This article features an example ofthis cruelty about a discovered mass grave of several hundred battered skeletons, killed in thetown of El Mozote in 1981 by soldiers from the Salvadoran army's U.S.-trained AtlacatlBattalion.'The Court discusses in one of its advisory opinions the question of not exhaustion ofdomestic remedies due to lack of funding: Exceptions of the exhaustion of domestic remedies(1990), Inter-Am Ct. H.R. Advisory Opinion OC-11/90, (1991) 12 HRLJ 20."Fairen Garbi Case (Honduras)  (1989), Inter-Am. Ct. H.R. Ser. A at 112, No. 100.298Twice in 1988 the Court issued preliminary measures to safeguard the witnesses of theVelasquez Rodriguez case, after several witnesses were murdered, (1988) 9 HRLJ 104 and 105.Again an order had to be issued in 1990 in the case Bustios and Rojas as threats by the Armedforces were made to murder the relatives of a victim and an other surviving victim and witnessesof the incidence, (1990) 11 HRLJ 257.134instead of being a "creature of the Convention"'.Thirdly, the small number of contentious judgements of the Court to date is due to thestructure of the Convention. The obligatory nature of the Commission's procedure gives theCommission considerable power in determining the admissibility of a case.As shown through the judgement in the Viviana Gallardo case, an individual, anongovernmental entity or a state can not directly address the Court. The procedures describedin Articles 48-50 have to be fulfilled, which means the preliminary actions before theCommission. These have tended to be very lengthy. This has not been entirely the fault of theCommission; it reflects another substantive problem with the Convention, namely the lack ofrules on evidence-gathering. Unfortunately, the Commission depends to a large extent on thecooperation of the states concerned. These states have tended not to answer at all, or if theyhave responded, they just have denied the event. Lack of funding has prevented the morefrequent use of on-site investigations. The Court's funding for an entire fiscal year was spenton the Velasquez case alone300. This raises the question of whether it makes sense to pursueone case so thoroughly while many others get delayed.The Court has left open the question of whether the preliminary action can becircumvented in an inter-state case under Article 45. However, this is very unlikely to happenand if it does, the arguments for denying such a circumvention, especially the lack of the optionof a friendly settlement and the object and the purpose of the preliminary measures, would not299T, Buergenthal et al., Protecting Human Rights in the Americas: selected problems(Strasbourg: N.P. Engel, 1982) at 164.Buergenthal, "International Human Rights Law and Institutions: Accomplishment andProspects" (1988) 63 Washington Law Review 1-19.135be any different. Therefore a similar judgement, that those rights cannot be waived, is the likelyoutcome.The Court's jurisprudence is distinctive in certain areas, most particularly in itsidentification of the philosophical bases of human rights obligations and ideological issuesconcerning the relationship of human rights to the concept of the rule of law and to democraticideals. That is, the Court has not examined human rights in the abstract, but linked them tocertain assumptions based on a particular concept of political and social organisation. In brief,this concept may be described as liberal-democratic in orientation'. The Court has thereforebeen not static but dynamic in all of its judgements. One of its main purposes has been toproclaim the existence of a basic set of rules a state should follow. Among those arerepresentative democracy, a pluralistic society, the rule of law and the principle of legality. Thisidentification of a link between human rights and representative democracy is not only theCourt's own creation. The major Inter-American Human rights instruments already provide forthose assumptions, the OAS-Charter in Article 3, the American Declaration of Rights and Dutiesof Man in Article 20 and the Convention itself in Article 23 (1).The Court's use of its advisory jurisdiction has made not only a numerically significantcontribution, twelve opinions to date, but also an substantive effort to "lift the level of humanrights observance in the geographical area it serves."' Advisory opinions have the practicalvalue that they are much easier for governments to comply with them. Governments are notaccused of violating a provision of the Convention and the opinion has a non-binding character.301S. Davidson, supra note 188 at 184.302A. Mower, Regional Human Rights, (New York: Greenwood Press, 1991), at 126.136Thus, if the government complies, it appears as if it does so voluntarily, not "under coercionfrom an external source" .303In nearly all its judgements the Court has made it clear that its approach to interpretationof the Convention is based upon the rules contained in Articles 31 and 32 of the ViennaConvention on the Law of Treaties of 1969. These may be deemed to be the appropriate rulesof international law governing the interpretation of treaties'''. Here the Court is undoubtedlycorrect. The Vienna Convention is a mixture of codification and progressive development, asshown above; however, its preamble emphasizes that the provisions concerning treatyinterpretation are a clear statement of customary international law.'The Court's interpretation methods have evolved over the years. Starting with a cautiousmixture of the subjective and objective methods, the Court has developed its interpretationmethod into a dynamic approach, whereby the meaning of the text is adapted to present-dayconditions. This is necessary for the interpretation of human rights treaties in order to fulfil theiroriginal goal, the protection of the individual.The rules applied by the Court follow this pattern, but can be classified as being moreconservative. The Court stays to the codified rules of the Vienna Convention and seldom leavesthis secure path.Overall, the Court is influenced by the specific nature of the cultural background and thespecial environment of the Americas, when choosing methods and rules of interpretation. Part3°31bid.304Viviana Gallardo Case. (1981) 2 HRLJ 328, 20 I.L.M. 1424.3°5Sir I. Sinclair, supra note 15 at 10-21.137of this environment are the economic conditions. Latin America struggles with a deterioratingeconomy and there is a connection between the economical situation and the kinds of humanrights violations in the respective countries. If domestic unrest, arising from a deterioratingeconomic situation, becomes too great, the controlling regime is vulnerable to the temptation toadopt repressive measures to stay in power. In addition it is a general understanding that thereis a positive correlation between the existence of democracy in a given country and the respectfor human rights of the government of the same country. It is a common fact that in countries,where the power-holder feels threatened by domestic unrest or internal forces that pose a threatto overthrow his regime, these power-holders feel tempted to protect their position by oppressivetactics, which inevitably produce violations of human rights. The result of those measures was,for example, quite often, the disappearance of individuals. Therefore the Court first had toestablish the disappearance of individuals as a violation of the Convention through choosing adynamic interpretation. Secondly the Court had to take the above mentioned considerations intoaccount, when interpreting judicial guarantees like "amparo" or "habeas corpus".The Commission is more aggressive in its interpretation methods and quite often leavesformal requirements aside. This is due to its attempt to improve the human rights situation inan entire country, sometimes forgetting that its original task is to ensure the human rights of anindividual.The Commission just experienced a new challenge as Uruguay attempted to circumventits obligation under the Convention to prosecute the persons responsible for human rightsviolations by granting them pardon. The Commission has ruled such steps to be inconsistent with138the object and purpose of the Convention'.Its interpretation methods and rules do not differ from the ones the Court uses. However,the Commission never identifies the rules it applies explicitly. Surprisingly it sometimes reachesa different conclusion than the Court.However, Court and Commission ensure the protection of human rights laid out in theConvention. They do this according to the limitations they face through their legal basis, theirfinancial restraints and the lack of cooperation of the countries concerned. Their contribution tothe evolving interpretation methods and rules when supranational institutions interpret humanrights instruments is of great value. Their decisions can be found in the citation of many suchbodies.Summing up, the interpretation of human rights treaties is today done by a different formof method than ordinary international treaties. 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"International Human Rights Treaties, Some Problems of Policy andInterpretation". 126 University of Philadelphia Law Review 886-929 (1978).Unknown. "Inter American Court of Human Rights case `Velasquez Rodriguez'." 41International Commission of Jurist Review 58-60 (1988).Waldock, Humphrey, Sir. "The political background and historical development of theEuropean Convention on Human Rights". 14 International and Comparative LawQuarterly 15 (1965).Wash, Lauchlan and Suagee, Dean and Schlanger, Phoebe. "The Inter-American HumanRights System: into the 1990s and beyond". 3 American University Journal ofInternational Law and Policy 517-565 (1988).Weston, Burns and Lukes, Robin and Hnatt, Kelly. "Regional human rights regimes: acomparison and appraisal". 20 Vanderbilt Journal of Transnational Law 585-637(1987).White, Roger. "Still more on treaty interpretation". 1-2 British Tax Review 35-37 (1991).Yassen, Mustafa. "L'Interpretation des Traites d'apres la Convention de Vienne sur le Droit desTraites." 151 Recueil des Cours 20 (1976).Young, Wendy and Cerna, Christina. "The Inter-American Commission on Human Rights andthe death penalty". 34 Federal Bar News and Journal 398-402 (1987).146APPENDIX 1Table 1: Progress of cases in front of the Inter-American Court of Human RightsShort title ofcasesAction takenby CourtVivianaGallaradoVelasquezRodriguezFairen Garbi-Solis CorralesGodinez CruzOrder(Preliminarymeasures)I. 15.1.19889 HRLJ 10488 Year 1006II. 19.1.19889 HRLJ 10588 Year 1010Preliminaryobjections26.6.198787 Year 77226.6.198787 Year 81426.6.198787 Year 858Interlocutoryjudgement22.7.19812 HRLJ 108Resolution 13.11.19812 HRLJ 32820 ILM 1424Order (decisionclosing thecase)9.8.19845 HRLJ 77Judgement 29.7.19889 HRLJ 21228 ILM 29188 Year 91415.3.1989Series A, 198920.1.1989Series A, 1989Judgement(assessment ofdamages)21.7.198911 HRLJ 127Interpretationof judgement17.8.199012 HRLJ 14147Table 2: (continued) Progress of cases in front of the Inter-American Court of Human RightsShort title ofcasesAction takenby CourtBustios-Rojas Aloeboetoe Gangaram-PandayNeira AlegriaOrder(Preliminarymeasures)8.8.199011 HRLJ 25729.6.199213 HRLJ 407Preliminaryobjections4.12.199113 HRLJ 14211.12.199113 HRLJ 146Interlocutoryjudgement4.12.199113 HRLJ 140ResolutionOrder (decisionclosing thecase)JudgementJudgement(assessment ofdamages)Interpretationof judgement148Table 3: Status of the American Convention on Human Rights, as of January 1st, 1990.Country Convention(ratification oraccession)Commission(recognition ofcompetence)Court(recognition ofcompetence)Argentina 5. 9. 1984 14.8.1984 14.8.1984Barbados 27.11.1982Bolivia 19.7.1979Chile signed: 20.6.1978Colombia 31.7. 1973 21.6.1985 21.6.1985Costa Rica 8.4.1970 2.7.1980 2.7.1980Dominican Republic 19.4.1978Ecuador 28.12.1977 24.7.1984 24.7.1984El Salvador 23.6.1978Grenada 18.7.1978Guatemala 25.5.1978 20.2.1987Haiti 27.9.1977Honduras 8.9.1977 9.9.1981Jamaica 7.8.1977 19.7.1978Mexico 3.4.1982Nicaragua 25.9.1979Panama 22.6.1978Paraguay signed: 16.9.1977Peru 28.7.1978 21.1.1981 21.1.1981Suriname 12.11.1987 12.11.1987United States signed: 1.6.1977Uruguay 19.4.1985 26.3.1985 26.3.1985Venezuela 9.8.1977 9.8.1977 9.8.1977149Table 4: Status of the European Convention on Human Rights and Fundamental Freedoms, asof 1 January 1993Country Council(Membershipsince)Convention(Ratification)Commission(Individualpetition)Court(competencerecognition)Austria 4.1956 3.9.1958 3.9.1958 3.9.1958Belgium 5.5.1949 14.6.1955 5.8.1955 5.7.1955Bulgaria 7.5.1992 7.9.1992 7.9.1992 7.9.1992CSFR 21.2.1991 18.3.1992 18.3.1992 18.3.1992Cyprus 4.1961 6.10.1962 n/a 24.1.1980Denmark 5.5.1949 13.4.1953 13.4.1953 13.4.1953Finland 5.5.1989 n/a n/a n/aFrance 5.5.1949 3.5.1974 2.10.1981 3.5.1974Germany 5.1951 5.12.1952 5.7.1955 5.7.1955Greece307 8.1949 28.11.1974 20.11.1985 30.1.1979Hungary 6.11.1990 5.11.1992 5.11.1992 5.11.1992Iceland 3.1950 29.6.1953 29.3.1955 3.9.1958Ireland 5.5.1949 25.2.1953 25.2.1953 25.2.1953Italy308 5.5.1949 26.10.1955 1.8.1973 1.8.1973Liechtenstein 11.1978 8.9.1982 8.9.1982 8.9.1982Luxembourg n/a 3.9.1953 28.4.1958 28.4.1958Malta 1.1965 23.1.1967 n/a n/aNetherlands n/a 31.8.1954 28.6.1960 31.8.1954Norway n/a 15.1.1952 10.12.1955 30.6.1964Poland 26.11.1991 not yet not yet not yetPortugal 9.1976 9.11.1978 9.9.1978 9.11.1978'Withdrawn from 12.1969-11.1974.'Includes San Marino.150Spain 11.1977 4.10.1979 1.7.1981 15.10.1979Sweden n/a 4.2.1952 4.2.1952 13.5.1966Switzerland 5.1963 28.11.1974 28.11.1974 28.11.1974Turkey 8.1949 18.5.1954 n/a n/aU.K. 5.5.1949 8.3.1951 14.1.1966 14.1.1966n a= not available not yet= so tar no ratification151APPENDIX 2Figure 1: OAS Procedure of the Inter-American Commission on Human RightsIndividual complaint Group of persons Legally recognized entityPreliminary requirements1. prior exhaustion ofdomestic remedies2. subject of petition orcommunication is notpending in anotherinternational settlementproceedingDecision of admissibilityEvidence gathering(Commission communicateswith governments)-witnesses-documents-records-official publications-on site observationsFriendly settlement Decision:Conclusion withsuggestions andrecommendationsTransmission to the state inquestion and petitionerEnforcement:(state fails to adoptmeasures recommended)Commission may publishcase in annual report to theOAS General Assembly ortake any other measure thatit considers appropriate,i.e. publishing a countryreport152Figure 2: Procedure of Advisory Jurisdiction before the Inter-American Court of Human RightsOAS member state onInterpretation of Conventionor on Interpretation of anyother treaty concerning theprotection of human rightsin the American StatesOrgan of OAS listed inChapter X on interpretationof Convention orInterpretation of any othertreaty concerning theprotection of human rightsin the American StatesOAS member state on thecompatibility of any of itsdomestic laws with theabove mentionedinstrumentsInter-American CourtAdvisory Opinion153Figure 3: Procedure of Adjudicatory Jurisdiction before the Inter-American Court of HumanRightsState complaint-special declaration ratified-or on "ad hoc basis"Individual complaint-Individual-Group of persons-recognizednongovernmental entitySubmission to theCommission:(Completion of proceduresof articles 48-50)1. Permission admissible(preconditions of article 46and 47 exists)2. Commission ascertainsthe factual allegations by-hearings-documents-investigationsReport setting forth factsand conclusionsTransmission to the statesconcerned with proposalsand recommendationsfriendly settlementAfter three month: eitherCommission or stateconcerned submits to theInter-American Court ofHuman RightsJudgement or preliminarydecision.Decision includes:1. violation of convention2. rights the injured party isentitled to enjoy3. steps to be taken toremedy violationin addition: extraordinaryremedy, article 63,provisional measurescase closed154Enforcement of judgement:Court informs OAS GeneralAssembly, article 65

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