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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 FRAMED by FLORIAN REINDEL Staatsexamen, Ludwig-Maximilians-Universitaet-Muenchen, 1991 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA April 1993 © Florian Reindel, 1993  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Signature)  Department of  ^  Law  The University of British Columbia Vancouver, Canada  Date  ^24 March 1993  DE-6 (2/88)  11  ABSTRACT  This thesis is an analytical study of the rules and methods in the respective cultural context used in the interpretation of human rights treaties. It involves an examination of the interpretation methods and rules of "ordinary" international treaties, which are being compared with those of the interpretation methods and rules of human rights treaties. The Inter-American human rights protection system with the judgements of the InterAmerican Court of Human Rights and the decisions of the Inter-American Commission on Human Rights serve as an example. This thesis also includes a comparative overview of the various international and regional human rights protection mechanisms.  Human rights treaties have a special nature when being compared to other international treaties. They are concluded by states which limit their sovereignty for an indefinite period of time, while granting rights to individuals, who are not partners of the treaty. Through a process of evolution those treaties are not interpreted in the classic objective or subjective method of interpretation, but in a newly developed dynamic approach. That is, the meaning of the text is looked at under the intention of the treaty, however, under present day conditions. All codified and non-codified rules of treaty interpretation are applied, however, under the limitation that the rights of the individual are being protected.  111  TABLE OF CONTENTS  ABSTRACT ^  ii  TABLE OF CONTENTS ^  iii  LIST OF TABLES ^  xiii  LIST OF FIGURES ^  xiv  ACKNOWLEDGEMENT ^  xv  INTRODUCTION ^  1  CHAPTER ONE: Methodology of interpretation ^  4  I. Definition of interpretation ^  4  II. Function of interpretation ^  5  III. Goals of interpretation ^  6  IV. General methods of interpretation ^  7  A. Textual method ^  7  B. Systematic and teleological method (logical method) ^ 7  iv C. Historical method ^  8  CHAPTER TWO: International treaty interpretation ^  9  I. Methods of interpretation in international law ^ A. The basic approaches ^  9 9  1. Subjective method (intentional school) ^ 10 2. Objective method (textual school) ^  10  3. Teleological method (teleological school) ^ 11 4. Dynamic method (New Haven school) ^ 11 B. Means of interpretation in international law ^ 14  1. The text of the treaty ^  14  a. The treaty as a whole ^  14  b. The context ^  14  2. Further textual means of interpretation ^ 15 a. Travaux preparatoires ^  15  b. Quasi-annexes ^  15  c. Declarations and further utterances of the negotiators . . ^ 16 3. Object and purpose of the treaty ^  16  4. Other norms of international law ^  17  5. Subsequent action of the state parties ^ 18 C. Distinction by the interpreting person ^  19  1. Authentic interpretation ^  19  V  2. Judicial interpretation ^  20  3. Individual interpretation ^  21  II. Rules for interpretation in international law ^  22  A. Rules before the Vienna Convention on the Law of Treaties ^ 22 B. Codified rules in the Vienna Convention on the Law of Treaties ^ 24 1. Article 31 General rule of interpretation ^ 25 2. Article 32 Supplementary means of interpretation ^ 30 3. Article 33 Interpretation of treaties authenticated in two or more languages ^  31  4. Outlook for possible changes regarding codification of rules . . ^ 33 B. Non-codified rules ^  34  1. "contra proferentem" ^  34  2. "in dubio mitius" ^  36  3. "ut res magis valeat quam pereat" ^  37  4. "friendly to international law" ^  37  5. Further rules ^  39  a. "cy-pres" ^  39  b. "prohibitory versus permissive" ^ 39 c. "expressio unius est exclusio alterius" ^ 40 d. "eiusdem generis" ^ III. Conclusion ^  40 41  vi CHAPTER THREE: International human rights protection ^  42  I. International treaties, covenants and declarations ^  43  II. Regional instruments to protect human rights ^  45  A. Europe ^  46  B. Africa ^  48  C. Arabia ^  51  D. America ^  51  1. The Inter-American Commission on Human Rights ^ 53 a. Historical development ^  53  b. Composition ^  56  c. Procedures and effects ^  57  2. The Inter-American Court of Human Rights ^ 60 a. Historical development ^  60  b. Composition ^  61  c. Procedures and effects ^  61  CHAPTER FOUR: Interpretation of human rights treaties: The example of the InterAmerican System ^  66  I. By the Inter-American Court ^  66  A. In cases ^ 1. Viviana Gallardo ^ a. History of the case ^  66 66 66  vii b. Methods applied ^  67  c. Rules applied ^  68  2. Velasquez Rodriguez ^  68  a. History of the case ^  69  b. Methods applied ^  72  c. Rules applied ^  75  3. Fairen Garbi and Solis Corrales ^  75  a. History of the case ^  75  b. Methods applied ^  76  c. Rules applied ^  77  4. Godinez Cruz ^  78  a. History of the case ^  78  b. Methods applied ^  79  c. Rules applied ^  81  5. Cases pending before the Court ^  82  a. Bustios and Rojas ^  82  b. Aloeboetoe ^  83  c. Gangaram-Panday ^  85  d. Neira-Alegira ^  87  B. In advisory opinions ^ 1. No. 0C-1/82 - "other treaties" ^ a. History of the opinion ^  88 88 89  vi" b. Methods used in the opinion ^ 90 c. Rules applied ^  91  2. No. 0C-2/82 - "entry into force and reservations" ^ 92 a. History of the opinion ^  92  b. Methods applied ^  93  c. Rules applied ^  94  3. No. OC-3/83 "death penalty" ^  95  a. History of the opinion ^  95  b. Methods applied ^  96  c. Rules applied ^  97  4. No. OC-4/84 "amendments to the naturalization provisions of the Political Constitution of Costa Rica" ^ 97 a. History of the opinion ^  97  b. Methods applied ^  98  c. Rules applied ^  99  5. No. 0C-5/85 "Compulsory membership in an association prescribed by law for the practice of journalism" ^ 99 a. History of the opinion ^  99  b. Methods applied ^  100  c. Rules applied ^  100  6. No. 0C-6/86 "The word laws in Article 30" ^ 101 a. History of the opinion ^  101  ^  ix b. Methods applied ^  102  c. Rules applied ^  102  7. No. 0C-7/85 -"Enforceability of the right to reply or correction" ^  103  a. History of the opinion ^  103  b. Methods applied ^  104  c. Rules applied ^  105  8. No. OC-8/87 -"Habeas Corpus in emergency situations" 105 a. History of the opinion ^  105  b. Methods applied ^  106  c. Rules applied ^  106  9. No. OC-9/87 -"Judicial guarantees in the state of emergency" ^ 107 a. History of the opinion ^  107  b. Methods applied ^  109  c. Rules applied ^  109  10. No. OC-10/89 "Interpretation of the American Declaration of the Rights and Duties of Man within the framework of Article 64 of the American Convention on Human Rights" ^  109  a. History of the opinion ^  110  b. Methods applied ^  111  c. Rules applied ^  112  x  11. No. OC-11/90 -"Exceptions of the exhaustion of domestic remedies" ^  112  a. History of the opinion ^  112  b. Methods applied ^  114  c. Rules applied ^  114  12. No. 0C-12/91 -"Compatibility of draft legislation of the Republic of Costa Rica with Article 8(2) (h) of the Convention" ^  115  a. History of the opinion ^  115  b. Methods applied ^  116  c. Rules applied ^  117  II. By the Inter-American Commission on Human Rights ^ 117 A. Decisions prior to the adoption of the Vienna Convention on the Law of Treaties, May 23, 1969 ^  117  1. Communications: Repatriated Haitian citizens and the BeauvoirFlorez Case ^  118  a. History of the communications ^ 118 b. Methods applied ^  118  c. Rules applied ^  119  2. Country reports: Haiti 1963 ^  120  a. History of the report ^  120  b. Methods applied ^  121  xi c. Rules applied ^  121  B. Decisions in between the adoption of the Vienna Convention 23.5.1969 and the first judgement of the Court 22.7.1981 ^ 121 1. History of the "baby boy" case ^  122  2. Methods applied ^  123  3. Rules applied ^  125  C. Decisions after the first judgement of the Court 22.7.1981 ^ 126 1. As organ of the convention ^  126  a. Relationship between the Commission and the Court^126 b. Methods applied ^  128  c. Rules applied ^  128  2. As organ of the OAS ^  128  a. History of the Stephen Schmidt case ^ 128 b. Methods applied ^  130  c. Rules applied ^  130  CHAPTER FIVE: Conclusion ^  131  BIBLIOGRAPHY ^  139  APPENDIX 1 ^  146  xii  APPENDIX 2 ^  151  xiii LIST OF TABLES  Table 1: Progress of cases in front of the Inter-American Court of Human Rights . . . . 146  Table 2: (continued) Progress of cases in front of the Inter-American Court of Human Rights ^  147  Table 3: Status of the American Convention on Human Rights as of January 1st, 1990 ^  148  Table 4: Status of the European Convention on Human Rights and Fundamental Freedoms as of January 1st, 1993 ^  149  xiv  LIST OF FIGURES  Figure 1: OAS Procedure of the Inter-American Commission on Human Rights ^ 151  Figure 2: Procedure of the Advisory Jurisdiction before the Inter-American Court of Human Rights  152  Figure 3: Procedure of Adjudicatory Jurisdiction before the Inter-American Court of Human Rights  153  XV  ACKNOWLEDGEMENT  Like most students, I have accumulated numerous debts in writing this thesis. I have taken advantage of the goodwill of many teachers and friends. I am especially grateful to Karin Mickelson for her careful critical comments on, and advice for revisions of the draft of this thesis, over the last six months during which it took shape. I also thank Ivan Head, who has read and discussed the draft with me. This thesis is much better for their comments, criticisms and advice -and probably would have been better still if I had listened more attentively. I owe a special debt to Pitman Potter, who apart from reading this thesis, resolved with prompt action all the technical problems surrounding this thesis. I will not forget to appreciate the help of Ian Haysom, editor-in-chief of the "Vancouver Sun", who was kind enough to edit my writing into the proper English language. Acknowledgements always seem inadequate recognition and recompense, but this is particulary true in the case of those like Kris Pastro, who was just there, whenever I needed a friend, who would listen to me.  Vancouver B.C.^  Florian Reindel  1 INTRODUCTION  Compared with most other international agreements, human rights treaties have a unique character. They are not concerned with the regulation of mutual relations and the exchange of benefits between sovereign states. Instead they proclaim principles for the humane treatment of the inhabitants of the participating states. The granting of such rights used to be a matter which lay within the domestic jurisdiction of a sovereign state and was located within its exclusive competence. Since the end of the Second World War this issue has become the subject of international protection and supervision. International treaties are interpreted according to or in accordance with a certain set of methods and rules. This thesis is intended to address the question of whether the methods and rules 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. This includes a definition of interpretation, and a discussion of the function, the goals and the means of interpretation. The first of the two main parts of the thesis outlines the methods and rules which are used in international treaty interpretation (chapter 2). These are then compared with the methods and rules used in interpreting human rights treaties (chapter 4). The differentiation between methods and rules is a theme throughout the thesis. In chapter 3 the international and regional human rights protection mechanisms are presented. Due to their vast number, only the major international mechanisms, which are  2 affiliated with the United Nations, are outlined in order to understand the historical context of human rights protection. The European, African and the beginnings of the Arabian regional protection 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 analysis in chapter 4 of the methods and rules applied in the interpretation of human rights treaties is carried out through a study of the Inter-American human rights protection system. As the number of judgements of the Inter-American Court is still limited, they are analyzed in detail with a view to highlighting the methods used and the rules applied. The advisory opinions of the Inter-American Court are evaluated in detail. The vast number of decisions of the Commission are considered in the form of excerpts, whereby the leading cases for each time period are analyzed. Throughout the thesis the judgements of other adjudicative bodies, which are concerned with the interpretation of other human rights treaties outside of the Americas, are mentioned in order to stress principles of international treaty interpretation. As the methods of treaty interpretation have changed, or, as some would say, evolved over the years, another aim of this paper is to explore the changes in methodology when human rights treaties instead of "ordinary" international treaties are interpreted. The basic rules for treaty interpretation have been codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties. The structure of those rules is looked at. Some provisions seem to be unclear and several principles which were known to customary international law were not included. The rules of the Vienna Convention were drawn up for traditional 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 the  3 interpretation of human rights treaties. Possible changes to the current codification of interpretation rules, in the form of a new convention and possible amendments to the existing convention, are also discussed. A conclusion sums up the discovered results. The appendix contains charts explaining the procedure of a complaint under the OASCharter and under the American Convention of Human Rights. Tables show the progress of cases before the Inter-American Court of Human Rights, give reference to where these can be found and show the status of the American and European Conventions.  4 CHAPTER ONE: Methodology of interpretation  I. Definition of interpretation  Interpretation of law is an intellectual activity. It is part of hermeneutics', the form of activity "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 understanding of any utterance, may be illustrated by the following case. In 1952, Derek Bentley, age 19, and Christopher Craig, age 16, were surprised by armed police on the roof of a London warehouse they intended to rob. Craig had a gun but Bentley was unarmed. Shots were exchanged and an officer, Sydney Miles, was killed. Both teenagers were tried and convicted of murder. Bentley was hanged, but Craig escaped the gallows because he was too young. Jailed for life, he served 10 years before being released in 1963. Bentley was hanged on the basis of evidence that he shouted the words: "Let Him Have It!" This exclamation can be understood in two senses; either "Hand your gun to the officer" or "Shoot him". At the trial 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 posthumous pardon 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). A. Bredimas, Methods of Interpretation and Community Law (Amsterdam: North Holland, 1978) at 3. 2  3  "No pardon for teenager hanged 40 years ago" The Vancouver Sun (2 October 1992) A 11.  5 understanding of an "utterance" is concerned.  II. Function of interpretation'  Generally, interpretation can fulfil two different tasks: either, in a narrower sense, it is a tool to understand the meaning of a judicial text (Rechtsfindung) or, in a wider sense, it is used to fill a gap, which has opened up due to a problem arising which is not covered by the present law (Rechtserfindung). The first function therefore may be described as "making the text clear to oneself', the second function as "making the text understandable". To accomplish both tasks, one can approach the text in different ways. These are called methods. Methods of interpretation can be described as vehicles which help the interpreter "to ascertain the meaning of 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 make interpretation predictable and restrain the interpreting body from altering the treat?. Such rules can be either part of codified law, such as the Vienna Convention on the Law of Treaties, or can be part of customary law, when they are drawn from previous judgements; alternatively they are set 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. 5  A. Bredimas, supra note 1 at 3.  "It is the duty of the Court to interpret the Treaties, not to revise them". Interpretation of Peace Treaties with Bulgaria. Hungary and Romania, [1950] I.C.J. Rep. 229. 6  6 III. Goals of interpretation  "The fundamental rule in interpreting ambiguous statutes is that a judge must ascertain the intent of the legislature in enacting the statute".' This statement, taken from a treatise on the Canadian legal system, illustrates one of the two major doctrinal approaches towards interpretation. The quote reflects the Anglo-American approach, which adopted the "senseclaire" doctrine of the Roman "digesten", which allows interpretation only if there is an ambiguous meaning s . 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 "senseclaire" doctrine was proclaimed as being a principle of international law in the first treatise which was written on the interpretation of international treaties'. However, today's doctrinal approach follows the civil law system as Article 31 of the Vienna Convention on the Law of Treaties does not require an ambiguous meaning. The second requirement of the above mentioned quote --to determine the intention of the legislature-- or in this case the intention of the 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 the treaty 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 premiere Maxime generale sur l'interpretation est, qu'il n'est pas permis d'interpreter ce qui n'a pas besoin d'interpretation."  7 meaning, stressing the intention of the state parties; an objective meaning, stressing the meaning of 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 one aim of this thesis to point out the differences in the methods of interpretation of human rights treaties in comparison to "ordinary" international treaties.  IV. General methods of interpretation  A. Textual method  The 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, starting with the ordinary meaning of the sentence in common use, moving to the general meaning in legal 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 this method for the interpretation of human rights treaties will be shown in case examples in chapter four.  B. Systematic and teleological method (logical method)  The logical interpretation involves a dual approach. By looking at the context in which  8 the phrase or even the entire rule stands in relation to the other provisions of the treaty, other laws or even the rules of the entire international legal system, one tries to comprehend the meaning and the purpose" of the provision or term. This is achieved by a systematic analysis looking 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. The logical method thus may be the necessary corrective. If the provision in question has been shaped too widely or too narrowly, one will reach a restrictive or a broad interpretation. The decision, which method to apply is determined partially through the set of rules of interpretation, which is applicable.  C. Historical method  A secondary tool to logical interpretation is the historical method, which looks at the historical development of the law and compares previous and similar statutes. A further tool is to look at the history of the drafting of the specific provision with special emphasis on the diverse comments of the drafters which might not necessarily have become part of the rule. This approach is referred to as the "genetic method". How much of this "travaux preparatoires" may be 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.  9 CHAPTER TWO: International treaty interpretation  Some 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, and principles, although sometimes invested with the sanctity of dogmas, are not absolute formulae, but are in every sense relative --relative to the particular text, and to the particular problem that is in question."' To some extent Starke is right as some scholars overdid the classification of rules and methods with an almost mathematical perfection. Even when several of those methods and rules have to be applied in conjunction with each other, rather than alone, like the presumptions in the law of evidence in the common law system", it is still possible to determine certain structures of interpretation. Those will be classified as methods and rules in the following chapter.  I. Methods of interpretation in international law  A. The basic approaches  "We are amongst those who are sceptical as to the value of these so-called rules and are sympathetic to the process of their gradual devaluation, of which indications exist." Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961) at 366. This statement was however written in 1961, before the adoption of the Vienna Convention. 12  13  478.  J. G. Starke, Introduction to International Law, 10th ed. (London: Butterworth, 1989) at  lanif [those rules] are allowed to become our masters instead of our servants these guides can be very misleading." McNair, supra note 12, at 366.  10 1. Subjective method (intentional school)  When dealing with ambiguous provisions, the subjective method starts out by attempting to ascertain the historical intention of the parties adopting the agreement. The intention of the parties becomes an independent basis of interpretation. This method was favoured in international 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 analysis of the words used 15 . The International Law Commission, in its work leading to the Vienna Convention on the Law of Treaties, took the view that what matters is the intention of the parties as expressed in the text, which is the best guide to the more recent common intention of the parties. 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 fact that 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. 16 Sir G. Fitzmaurice, "The Law and Procedure of the International Court of Justice: Treaty Interpretation and certain other Treaty Points" in 26 British Yearbook of International Law 1951 at 1-28 and "The Law of Procedure of the International Court of Justice 1951-4: Treaty Interpretation and other Treaty Parts" in 33 British Yearbook of International Law 1957 at 203293.  11 change as the years passed by.  3. Teleological method (teleological school)  The third approach adopts a wider perspective than the other two schools. The objects and purposes of the treaty are emphasised "as the most important backcloth against which the meaning of any particular treaty provision should be measured'. The teleological school emphasises the role of the judge since he is called upon to define the object and purpose of the treaty 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 had to be used in order to give effect to provisions in accordance with the intentions of the parties ° . 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, did not prevent the Court from exercising jurisdiction. This is contrary to a prohibition to this effect regarding the General Assembly: "[u]nder Article 36 (3) of the UN-Charter, the Security Council makes recommendations to settle disputes, however legal disputes should as general rule be referred to the Court." 20M. Shaw, supra note 17, at 481.  12 areas in a dynamic manner. One is when a treaty operates as the constitutional document of an international organisation. For example, the Charter of the United Nations demands a more flexible method of interpretation, since one is dealing with an instrument that is being used in order to accomplish the stated aims of that organisation'. Here the concept and nature of the subsequent state practice 22 has a special relevance. This programmatic interpretation has been used to infer powers which were not expressly provided for in the Charter, but which were deemed necessary for the purposes of the United Nations'. The second area where the principle of effectiveness is used in a dynamic (sometimes called "evolutive") approach to interpretation is in the interpretation of human rights treaties. Human rights treaties involve an objective obligation to protect human rights instead of subjective reciprocal rights. Therefore, in this area a flexible programmatic and purpose orientated method of interpretation has tended to be adopted'. The European Court of Human Rights established this method as being its most significant for the interpretation of human rights  21  An example for enabling an organisation to function more efficiently can be found in the  Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations,  [1949] I.C.J. Rep. 174. 22  See 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 Yearbook of the European Convention on Human Rights 1961 (The Hague: Martinus Nijhoff, 1962) at 116. The Inter-American Court of Human Rights used this method for the first time in the Advisory Opinion OC-2/82, Effect of Reservations on the Entry into force of the American Convention on Human Rights (1982), 22 I.L.M. 37. See Chapter Four, I, B, 2, below, for a discussion of this advisory opinion.  13 treaties through a series of cases". Since the Tyrer decision, one quote has been repeatedly cited: "[T]he Convention is a living instrument, which has to be interpreted in the light of present day conditions". This quote can be found in almost every decision the Court has rendered since. The significance of this method may be illustrated by the Tyrer Case itself. A British subject complained about corporal punishment in the form of birching that he had received from a local court on the Isle of Man. In the year 1950, when the United Kingdom became 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 punishment was still considered an acceptable measure. Over the years, the public opinion regarding corporal punishment changed and in 1975 this form of punishment was no longer considered acceptable to the common standards of the European nations. The dissenting opinion of the British judge Fitzmaurice illustrates that the dynamic approach was not followed by every member of the Court. Judge Fitzmaurice proclaimed himself to be biased in this case, (a remarkable statement for judge!), he stated that he himself had received such punishment during his 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 in alteration 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 extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6(1) read in its context and having regard to the object and purpose 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.  14 the treaty or any result contrary to the letter and the spirit of the treaty" 27 .  B. Means of interpretation in international law  1. The text of the treaty  a. The treaty as a whole  "In considering the question before the Court upon the language of the Treaty, it is obvious that the Treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense."' The treaty in all its parts, including the preamble and the annexes, has to be considered for purpose of interpretation. The "treaty" for this purpose may be, according to the circumstances the complete treaty or a self-contained part of it or even a single article'.  b. The context  The context seen in a wider sense includes all further agreements. According to  J.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. 29  Lord McNair, supra note 12 at 381.  15 McDougal", all conditions, which are important "for the world constitutive process of authorative decision" belong to the context. Those are according to McDougal, "changes in the interdependence and in the recognition of interdependences, among peoples, affecting the potentialities of sanctions, changes in the relative strength of the various contending world public orders, which honour persuasion and coercion as instruments of social change in differing degree, changes in the composition of territorial communities and functional groups, affecting both the modalities of communication and the perception of common meanings, changes in the technology of communication and the recording of communication, changes of cooperative strategies in the shaping and sharing of particular values, affecting expectations about the future modalities of such cooperation."  2. Further textual means of interpretation  a. Travaux preparatoires  A discussion of the influence of preparatory work will be undertaken below under the heading "Rules before the coming into force of the Vienna Convention on the Law of Treaties."  b. Quasi-annexes  Annexes, 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 are themselves not part of the treaty are used for purposes of treaty interpretation. Even in  30M. McDougal, H. Lasswell & J. Miller, Interpretation of Agreements and World Public Order (New Haven: Yale University, 1967) at 34.  16 contradiction to their formal position, they are used as such means, "if there is a material internal connection to the document being interpreted". 31  c. Declarations and further utterances of the negotiators  The 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 Sir Eric Beckett: :...[i]f everybody at a conference, where there are committees and minutes, really thought 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 as it is upon the text of the ultimate instrument. Some people do think this. Their interventions are lengthy and they make difficulties about every minute every time. Other people attach less value to speeches and minutes. They are thinking only of the ultimate text and assume that these discussions and minutes are of very ephemeral value and importance'.  3. Object and purpose of the treaty  The 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 of the Declaration are in the nature of an interpretation clause, and as much, should be regarded as an integral part of the Treaty even if this was not stated in terms..." 43 Annuaire de l'Institut de droit international (1950) at 435. Further he talks about the fact that the real decisions are taken outside the conference room and therefore will never appear in the protocols. 32  17 becomes 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 only seeking to understand and give effect to the intention which the parties had in common, the object, or overall aim and purpose of the treaty is to be kept in mind, while interpreting." The Permanent 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 would have been expressed in the Treaty itself.'  4. Other norms of international law  A treaty provision does not exist in an otherwise empty space. It is part of the international legal order which exists among the members of the international community of subjects 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 raison de la Loi, ou du Traite, c'est-a-dire le motif qui a porte a les faire, la vue que l'on s'y est proposee, 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 to Regulate the Personal Work of Employers (1926), P.I.C.J. Ser. B, No.13 at 6 and 18.  18 between them in what may be called the atmosphere and the spirit of international law as recognized by both of them."'  5. Subsequent action of the state parties  The subsequent action of the parties under the agreement are additional means of interpretation. These actions are indices of the expectations of the treaty partners. The excerpt from the following judgement illustrates the importance of the subsequent state practice: "These declarations constitute recognition by the Union Government of the continuance of its obligations under the Mandate and not a mere indication of the future conduct of that Government. Interpretations placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its own obligations under an instrument. In this case the declarations of the Union of South Africa support the conclusions already reached by the Court."' Therefore they are more helpful than the plain text "to determine the genuine shared expectations 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 called a rule, namely that, when there is a doubt as to the meaning of a provision or an expression contained in a treaty, the relevant conduct of the contracting parties after the conclusion [...] has a high probative value as to the intention of the parties at the time of 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) 26 A.J.I.L. 839. 135  'Advisory Opinion upon the International Status of South-West Africa. [1950] I.C.J. Rep. 39  M. McDougal et al., supra note 30 at 96.  'Lord McNair, supra note 12 at 424.  19 the text and, second, those that are in contradiction to the text. Both categories can be subdivided again into either the one-sided but tolerated practice of one party or a mutual practice of both parties. The latter one of these last mentioned two categories can either be an authentic treaty interpretation' or a treaty alteration'.  C. Distinction by the interpreting person  1. Authentic interpretation'  As there is no central legislative body in the international legal system, interpretation has to be achieved through the consent' of the treaty partners. In Article 31 III b of the Vienna Convention this method has been codified. The major problem about authentic interpretation is to identify it. The boundaries between 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 drafting defects. 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 and treaty alteration. 'Example for the alteration of a treaty by mutual subsequent action can be found in the Temple of Preah Vihear Case: "Both parties, by their conduct, recognized the line and therefore in effect agreed to regard it as being the frontier line", [1962] I.C.J. Rep. 33. 43  1. Voicu, De l'interpretation authentique des traites internationaux, (Paris, 1968).  44  Jaworzina 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 le pouvoir de la modifier ou de la supprimer..."  20 an instrument such as a Protocol, or Proces-Verbal, or Final Act is often annexed to the main convention containing a detailed interpretation or explanation of the doubtful provisions"." The classic example of authentic treaty interpretation is the appendix" to the European Social Charter', wherein the state parties define how they interpret certain terms set forth in the Charter. Since this appendix was included into the Charter during and through the adoption of the Charter, it can neither be an alteration nor a reservation to the Charter. Therefore it must be an authentic interpretation of the Charter.  2. Judicial interpretation  Judicial Interpretation is carried out either by international courts or tribunals, such as the Inter-American Court of Human Rights or the European Court of Human Rights, or by international arbitration courts, tribunals or other international technical organs, such as the International Labour Office" and various organs of the United Nations". It is now general  45  J.G. Starke, supra note 13 at 477.  "European Social Charter, Article 38. 47  529 U.N.T.S. 89.  "Every international convention adopted by the International Labour Conference has a bearing -however slight- upon the realization of human rights and fundamental freedoms. The conventions adopted by the conference in the 70-year period between 1919 and 1989 is sometimes 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 San Francisco Conference, where the Charter was drafted, established this idea. Report of the Rapporteur of Committee IV/2 the Conference, p.7 and 8.  21 practice that the treaty partners include in the treaty a dispute clause, especially in multilateral treaties, providing for methods of settling disputes arising as to the interpretation or application of the treaty. Quite often jurisdiction on this matter is rendered to a certain body, e.g. an ad hoc Committee of Jurists, which will be described in this dispute clause. The alternatives are negotiations between the parties, arbitration, conciliation or simply judicial settlement.  3. Individual interpretation  Finally treaties can be interpreted by one of the treaty parties alone. This is the most common form of treaty interpretation, which we can observe in the daily news. A unilateral interpretation 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 time of the signature or ratification of the treaty, this measure can be a reservation according to Articles 19 ff of the Vienna Convention on the Law of Treaties. A reservation, rather than an interpretation, is being done, "when the effect of the treaty propositions [is] prevented or altered" 51 . Individual treaty interpretation also occurs when national courts interpret international treaties in their judgements.  Lord McNair, supra note 12 at 345-350.  50  "Commentary of the ILC on Article 2 I d of the 1966 draft of the Vienna Convention on the Law of Treaties", Yearbook of the International Law Commission 1966, vol. II (New York 1966) at 189ff. 51  22 II. Rules for interpretation in international law  A. Rules before the Vienna Convention on the Law of Treaties  Beginning with Grotius, successive generations of writers, arbitrators and judges elaborated rules for interpretation of treaties. Most of those rules were borrowed from the private 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 the Romans". Grotius54 introduced those to the modern world in Chapter XVI of his book "De Jure Belli ac Pacis": words are to be understood in their ordinary sense 55 , and technical terms are to be explained according to their technical use. Both rules found their way into the Vienna Convention as both are frequently applied by international courts and tribunals. Rules for treaty interpretation were part of international customary law before being codified in the Vienna Convention on the Law of Treaties. Fitzmaurice" studied the decisions of 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. M  E. Vattel, supra note 10, devotes Chapter XVII to the subject "of the interpretation of treaties". This is an enlarged copied version of the original of Grotius. H. Grotius, De jure belli ac pacis libri tres, trans. F. Kelsey, (New York: Ocean Publications, 1964) at 409. 55  56  Ibid. at 410.  "Sir G. Fitzmaurice, supra note 16.  23 1. Actuality/textual interpretation) 2. natural or ordinary meaning 3. Interpretation of the treaty as a whole 4. Effectiveness (ut res magic valeat) 5. subsequent practice. Those principles will be discussed below under the section on non-codified rules of interpretation. As the Vienna Convention reflects the former rules of customary international law, only one major issue concerning the rules of interpretation will be discussed below." This issue gave ground for a controversy between the scholars' and the courts. The question was whether only the text or, in addition to the text, the "travaux preparatoires" should be used as means for interpretation. In addition the question dealt with the problem of whether this preparatory work had only a secondary function, i.e. to correct a reached conclusion which appears 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 given rise to the possibility of future amendments to the Vienna Convention'. The Permanent "For the situation concerning the interpretation of treaties authenticated in more than one language before the adoption of the Vienna Convention, see Lord McNair, supra note 12 at 432435. "Lord McNair, supra note 12 at 411-423. ""The interpretation of obscure terms in a treaty is a matter of fact, as to which extrinsic evidence may be taken for the purpose of explaining objective obscurity." J. Moore, ed., A Digest of International Law as embodied in diplomatic discussions, treaties and other international agreements. international awards, the decisions of municipal courts, and the writing of jurists, and especially in documents, published and unpublished, issued by presidents and secretaries of state of the United States, the opinions of attorneys-general, and the decisions of courts federal and state (Washington: Government Printing Office, 1906), at 252. Ris,s "Treaty Interpretation and ICJ Recourse to Travaux preparatoires: Towards a Proposed 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. 61m.  24 International Court of Justice had a bias against including the preparatory work in its decisions at al1 62 . A similar view was expressed in the Lotus case: "...(it) must recall in this connection what it has said in some of its preceding judgements and opinions, namely, that there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself'. Curiously the Court did not follow its own rule : "...the preparatory work fully confirms 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 has usually stated them with such qualifications as to leave itself completely free to apply them or not accordingly as the circumstances and evidence in a particular case may require". However, the jurisprudence of international courts before the coming into force of the Vienna Convention, can be seen as the foundation of the Vienna Convention itself.  B. Codified rules in the Vienna Convention on the Law of Treaties  The Vienna Convention is a unique treaty instrument. Unlike other international agreements that regulate States' behaviour in a particular field of international relations such as "there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself", Employment of Women during the Night Case (1932), P.C.I.J. Series A/B, No.50 at 378. 62  '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.14  at 28.  'Harvard Law School, "Law of Treaties" (1935 Supplement), 29 A.J.I.L. 943.  25 human rights, this treaty is designed to govern all other treaties. Since treaties are today the primary source of international obligations' the rules of the law of treaties create the fundamental framework within which this regulation operates. Section Three of the Vienna Convention is devoted to Treaty Interpretation. Article 31 and 32 deal entirely with treaty interpretation. Article 31 prevails over 32. Article 33 deals with a special problem in treaty interpretation. Section 1 and 2 of Article 33 are occupied with defining how to determine the authentic language of a treaty; it would have made more sense to include these provisions under the section of treaty conclusion. Sections 3 and 4 of Article 33 are rules for interpretation. However, their value in relation to the real problem of several authentic 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 meaning to be given to the terms of treaty in their context and in the light of its object and purpose".  Article 38 of the Statute of the International Court of Justice is regarded as the most authoritative statement on sources of international law: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized 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 most highly qualified publicists of the various nations, as subsidiary means for the determination of rules 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.  26 The Vienna Convention is based on the idea that there is one basic rule for the interpretation 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 the Convention does not distinguish between "law making treaties" and "treaty contracts". This might be best illustrated by an example of the national legal system, where different set of rules for the interpretation of different types of law can be found quite often. For example, the Canadian legal system, deriving from the common law, distinguishes between statutory interpretation and stare decisis/precedent 67 . Secondly, as the Convention accepts only one general rule, we face the problem of whether the Convention wants to bring further rules into play in a certain order. Through the use of the singular in the title, ("General rule of interpretation"), it is indicated that Article 31 is 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 sunt servanda". Since every treaty is binding upon the parties, the provisions of it must be performed by them in good faith. If good faith is required of the parties in relation to the observance of the treaties, "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 a 67  G. 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 Opinion Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, [1960] I. C.J. Rep. 150. Under dispute was the meaning of the words "largest ship  owning nations".  27 "pure grammatical analysis'. The true meaning of a text has to be arrived at by taking into account all the consequences which normally and reasonably flow from the text'. Sinclair points out that there is "no such thing as an abstract ordinary meaning of a phrase, divorced from 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 between ordinary and special meaning is to be understood: "4. A special meaning shall be given to a term if it is established that the parties so intend." Both sections read together establish the rule that a special meaning prevails over the ordinary meaning. However, whether a term has a special meaning is essentially a question of burden of proof, "which lies with the party which is trying to invoke the special meaning of the term" 73 . The standard of proof appears to be very high since a derogation from the ordinary meaning of the term is involved. Hence it cannot be enough that one party only uses this particular term in a particular way74 . "2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: 'Sir I. Sinclair, supra note 15 at 121. 11 ne s'agit donc pas d'un sens ordinaire abstrait, mais d'un sens ordinaire concret qui ne peut etre discerne que par l'examen du terme en question dans le contexte de ce terme et a la lumiere du but et de l'objet du traite. C'est ce sens qui peut etre retenu dans le processus de l'interpretation du traite." M. Yassen, "L'Interpretation des Traites d'apres la Convention de Vienne sur le Droit des Traites" (1976) 151 Recueil des Cours 20. 71  "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 in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty." As shown above, if particular words and phrases in a treaty are ambiguous, their construction 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 one provision appears to be absurd. The preamble' of a treaty may assist in determining the object and the purpose of the treaty. The European Court of Human Rights refers to the preamble of the Convention quite often' particularly when it uses its dynamic method of interpretation, in order 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 treaty or the application of its provision. (b) any subsequent practice in the application of the treaty which establishes the agreement 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. The Government of the Federal Republic of Germany Case, 19 I.L.M. 1357, for "context" and Nicaragua 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 the preamble of a 1881 treaty.  'For example in the Golder Case, supra note 25, when coming to the conclusion that article 6 (1) of the Convention guarantees a right to fair and public hearing in civil and criminal proceedings, involving a right of access to the courts, and therefore of access to legal advice. "Ce procede n'est pas toujour facile a manier, it implique des negociations plus ou moins delicates 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 procede 78  29 variety of state practice and case law which gives a strong indication that subsequent state practice is an element to be taken into account in interpreting a treaty'. A good example of subsequent practice is the practice of the Security Council in relation to the interpretation of Article 27 (3) of the United Nations Charter, which requires that decisions of the Security Council on all matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members. From 1946 onwards, an unvarying practice has been adopted within the Security Council whereby a voluntary abstention by a permanent member has been treated as the equivalent of a concurring vote within the meaning of this provision, in the sense that it has not been regarded as preventing the adoption of a decision which has otherwise attracted the required arithmetical majority of affirmatives votes". Finally, as discussed above, every treaty provision must be read not only in its own context, 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 interpreted in light of the rules of the international law in force at the time of the conclusion of the treaty or those in force at the time of the interpretation. Since a treaty may remain in force for many years, and since international law may evolve and develop during the period when the treaty is in force, the interpreter must take into account this evolution. This argument leads to the  devient 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 true meaning, 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 the Security Council under Article 27 Paragraph 3 of the Charter of the United Nations", (1967) 61 A.J.I.L. 737-52.  30 dynamic interpretation method, which has been discussed above.  2. Article 32 Supplementary means of interpretation  "Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning 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 or determination because the meaning remaining ambiguous or obscure, or leads to a manifestly absurd or unreasonable result, recourse may be made to supplementary means of interpretation under Article 32. As Articles 31 prevails over Article 32, one of the two provisions of Article 32 (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 for the interpreter to bear in mind the historical background against which the treaty has been negotiated". 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 the situation 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 parties a conclure le traite pour maintenir ou confirmer le statu quo ou apporter un changement qu'une nouvelle conjuncture necessite". M. Yassen, supra note 71 at 48. "Sir I. Sinclair, supra note 15 at 141.  31 below. The rule itself is much wider than the one that was accepted as customary international law before the coming into force of the Vienna Convention. The Permanent International Court of Justice took the view that the travaux preparatoires of certain provisions could only be taken into account when the states appearing before the Court had participated in the preparatory conference".  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 equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties 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 a comparison of the authentic texts discloses a difference in meaning which the application of 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 of international law varies. For example, Article 111 of the Charter of the United Nations provides that 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, greater weight 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.  32 International Court of Justice seems to confirm this argument. In fact, Article 33 is considered one of the failures of the Vienna Convention. It is believed 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 in sections 1 and 2 with the questions how to determine an authentic language. Arguably, these sections should have been placed under the section of treaty conclusion. Sections 3 and 4 of Article 33 are rules of interpretation. However, their use is limited; to solve problems which come up in this context, adjudicative bodies will have to have recourse to rules derived from customary international law. This may be shown by the following example. The African Charter of 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 simple majority" or -in the French version- "majorite absolue" of the members of the Commission, in order to be considered. According to Article 33 (3) both texts are presumed to have the same meaning. Logically this cannot be the case, as the French version needs at least six votes in favour, and the English version just one, when everybody else abstains. Before the coming into force of the Vienna Convention it was a rule of customary international law that in case of a divergence between two equally authentic languages a restrictive interpretation has to be applied". 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 the Charter, [1948] I.C.J. Rep. 62-63. 85  (1982) 21 I.L.M. 59.  Mavrommatis Palestine Concession Case (1926), P.C.I.J. Ser. A, No.2, at 19 and Young Loan Case, supra note 83 at 495. 86  33 treaty. The object and purpose of the Charter is, no doubt the protection of individuals. But this does not necessarily imply that the French version should be contradicted. The African Charter being a human rights treaty, demands that the African Commission will have to fall back to other rules outside of the Vienna Convention, such as "choosing the most favourable meaning of a term for the individual".  4. Outlook for possible changes regarding codification of rules  There 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 International Organizations or between International Organizations". The text for this Convention was adopted by a legal codification conference under the auspices of the United Nations" on March 20, 1986 89 .There is unlikely to be any effect on treaty interpretation, as the Articles concerning treaty interpretation are the same as in the Vienna Convention on the Law of Treaties. Even the numbering was kept the same. Secondly, amendments to the existing Articles 31 and 32 have been proposed so as to clarify the expression "travaux preparatoiress", thus making the jurisprudence of the International Courts more predictable and more consistent. The possible amendments will not  "G. Gaja, "A new Vienna Convention on Treaties between States and International Organizations or between International Organizations: a critical commentary" 58 British Yearbook 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).  34 have much effect. Travaux preparatoires is quite often used for interpretation of human rights treaties. However, the preparatory work is used less for the interpretation of the substantive parts of the agreements, but more often for the interpretation of procedural questions. The Committee against Torture, for example, uses the travaux preparatoires to point out to the state concerned that it has jurisdiction under Article 20 of the Convention, when jurisdiction is denied by that state.'  B. Non-codified rules  Several rules were used in international adjudication and arbitration which did not become part of the Vienna Convention. This was due to the fact that some of these rules could not be regarded as part of the international customary law as they either lacked world wide recognition or were not being used constantly. There are two elements, which are recognized to determine a customary international rule. First of all, the rule must be "opinio iuris", secondly it must have been consistent in general practice. In addition, some of these "rules" actually do not belong under the category of rules of interpretation as they serve a different purpose.  1. "contra proferentem"  Oral information from Prof. Burns, UBC Faculty of Law, Member of the United Nations Committee against Torture and other cruel, inhumane or degrading treatment or punishment, in class October 26, 1992. 90  35 If a sentence is ambiguous, the meaning unfavourable for that party who proposed the ambiguous wording shall prevail'. This seems to be fair, however it is not. Treaties are in general mutual agreements, thus both sides have the right to agree or to disagree with any proposition'. As long as no understanding or compromise is reached, no treaty will be concluded. Thus an ambiguous meaning is either in the interest of both parties or a sign of bad diplomatic craftsmanship on one side. In addition, an ambiguous meaning in favour of one party could destroy the architecture of reciprocality of a treaty. Furthermore it is very difficult to prove who proposed an ambiguous meaning first, as negotiations tend to be held behind closed doors and not every proposal appears in the records. Even if one side cannot be blamed at all for the ambiguous meaning" and it is evident that the other side did either voluntarily or involuntarily inflict this ambiguous proposition "contra bonam fidem", the application of "contra proferentem" is still no rule of interpretation. Since interpretation ends when the adjudicatory body rules that the provision is ambiguous, the decision how to proceed from here on is the  91't ..there is a familiar rule for the construction of instruments that, where they are found to be ambiguous, they should be taken contra proferentem." Case concerning the Payment in Gold 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 meanings are admissible,... [the one is] to be preferred which the party proposing the clause knew at the time to be that which was held by the party accepting it." "G. H. Hackworth, Digest of International Law (Washington D.C. :U.S. Government Printing Office, 1943) at 243. The Romanian-German Arbitration Court ruled in the Weitzenhoffer v. Germany Case ADPILC 1925-1926 Case No.278 at 367: "...les clauses ambigues du Traite devaient etre interpretees contre leurs redacteurs." The provisions of the Peace Treaty of Versailles have to be interpreted to the disadvantage of the Allied powers, as they dictated the treaty provisions.  36 application of a rule of punishment. Applying now the rule "contra proferentem" can be suitable, 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 the obligated 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 of the rules of interpretation. Since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty, say in the most express terms, ambiguous provisions should be given a meaning which is least restrictive upon a party's sovereignty or which imposes the least onerous obligation. It appears to have some justification, as it is logical that any country which 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 Vienna Convention stresses the objective approach more than the subjective. Asking whether the state party wanted to limit its sovereignty through undertaking particular treaty obligations involves an 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 treaties and the punishment for the breach of a treaty provision are being dealt with differently: The breach of a treaty may lead to its suspension in whole or in part, Article 60. This punishment is totally useless for human rights treaties due to their nature of protecting individuals against the treaty partners.  37 3. "ut res magis valeat quam pereat"  Treaties are concluded for a certain reason. Interpretation of a treaty can lead to a result which is totally opposite to the treaty's purpose. Therefore, a rule was established that no interpretation should ever go against a treaty's purpose. However according to McNair  95  "the  rule of effectiveness must mean something more than the duty of a tribunal to give effect to a treaty". A typical example can be found in the Advisory Opinion of the International Court of Justice 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 the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit." The value of this rule has been questioned by many scholars. Lord McNair' for example pointed out "it is [the] duty of a tribunal to ascertain that purpose and do its best to give effect to it, unless there is something in the language used by the parties which precludes the tribunal from doing so". According to the Vienna Convention, this rule is unnecessary, as in such cases Article 31 provides recourse to the subsidiary means of interpretation pursuant to Article 32.  4. "friendly to international law"  95  Lord 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.  38 Treaties must be applied and interpreted against the background of the general principles of international law. Their very existence and validity rest on one of the earliest and most fundamental of those principles -pacta sunt servanda. 98 Treaty 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 specific principle of international law". In case of doubt, the effectiveness of such international legal provisions shall not be contravened'. If such an interpretation can not be brought into accordance with the treaty text a restrictive interpretation is to be undertaken, according to this rule. International law is a certain category of law, where reciprocity prevails. Customary elements play a much more vital role than in other fields of law. Therefore, according to this rule, any interpretation of a treaty must comply with international law. However, it is understood today that there are treaties which are not reciprocal and that due to the emerging codification of international law, customary elements play a less and less vital role. Finally, it seems to be questionable whether it is so easy to draw a line where international law begins and national law ends. A good example for this problem is the disputed nature of European Community 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 good faith. For example: Case concerning Right of Passage over Indian Territory, [1957] I.C.J. Rep. at 124. "Ibid. at 141.  39 5. Further rules  Several so-called rules were either used only seldom in international adjudication or are limited to certain legal systems and therefore do not qualify as international customary law with general recognition.  a. "cy-pres"  "The rule of cy-pres is a rule for construction of instruments in equity, by which the intention of the parties is carried out as near as may be when it would be impossible or illegal to give it literal effect. " 101 In the case "The Amiable Isabella" it was ruled however that: "The doctrine of performance cy-pres, so just and appropriate in the civil concerns of the private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret them. " 1°2  b. "prohibitory versus permissive"  In the case of doubt a prohibitory clause has the preference over a permissive clause.'  387.  'Black's Law Dictionary, 6th ed., (St. Paul, Minnesota: West Publishing Co., 1990) at  J. B. Moore, supra note 60, at 251.  1°2  T. D. Woolsey, Introduction to the study of international law. Designed as an aid in teaching, and in historical studies, 6th ed. (New York: C. Scribner's and Sons, 1889) at 113. 103  40 This rule corresponds with the rule "in dubio mitius" to a certain extent. Therefore the above discussion 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 been being called "a rule of both law and logic and applicable to the construction of treaties as well as municipal statutes and contracts'. A direct application of this rule can be found in the Abu Dhabi Oil case".  d. "eiusdem generis"'  If general words follow or sometimes precede special words, the former are being restricted within a narrower "genus" than they might indicate if they were standing alone. The rule is however limited to the anglo-american legal system. Lord McNair stated that "[t]his rule cannot be described as a canon of construction, and there is no presumption in favour of its application."'  "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 "copulatio verborum indicat acceptionem in eiodem sensu". 'Lord McNair, supra note 12 at 393.  41 III. Conclusion  Articles 31 to 33 of the Convention constitute a general expression of the principles of customary international law relating to treaty interpretation. However, some rules were excluded. By placing emphasis on the key elements of the treaty interpretation, and on the relationship between those elements, the Convention rules establish a set of guidelines which are not only firmly grounded in antecedent State practice and international case law but which serve to indicate to the would-be interpreter the relative weight which should be attributed to each of those elements'. The application of the rules results in a certain uniformity of international court decisions and still leaves those courts with a freedom of choice. Nevertheless, any true interpretation of a treaty in international law will have to take into account all aspects of the agreement, from the words employed to the intention of the parties and the aims of the particular document. It is not possible to entirely exclude any of these components.  'I. Sinclair, supra note 15 at 153.  42 CHAPTER THREE: International human rights protection  The definition of human rights usually includes two elements. Number one is a description 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, commonly referred to as the "Western approach", sees human rights as individual rights. The second approach, common to Asian countries and formerly to the socialist world, regards human rights primarily as being collective rights. The second element of a human rights definition usually deals with the question of the source of human rights. International and regional human rights documents so far have regarded the origin of those rights as being a natural right. "Human rights are linked in history to the idea of 'natural rights'. A natural right is a right held by the virtue of one's nature; Those and other descriptions are attempts to give a foundation to law. It is remarkable that human rights are in the 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 one is a human being. They are thus moral rights of highest order."' A human right has been defined as "something due a person in social context, because of his membership in the class of humanity, because he is a human being 1,111.  Machan, Human Rights and Human Liberties: a radical reconsideration of the American political tradition (Chicago: Nelson Hall, 1975) at 50. 110J. Donnelly, Universal Human Rights in Theory and Practice,(Ithaka N.Y.: Cornell University Press, 1989) at 12. 111  T. McCann, supra note 109 at 50-51.  43 As expressed in one Covenant, "[H]uman rights derive from the inherent dignity of the human person. 12 " The Western idea of human rights is based on an understanding of human dignity that sees each person as being equally valuable, equipped with some inalienable rights that can be claimed against anyone, even against society. Through several international instruments, this concept of human rights has become a world wide approach. The United Nations, when adopting most of those instruments, were dominated by states at that time, which followed the Western legal approach. Therefore this concept is still disputed by several nonwestern conceptions', especially of Asian and Arabic origin. It is important to note that human rights instruments protect against the governments which are state parties. They do not however, protect against insurgents. Protected are individuals, however not insurgents or other combattants. They are protected through the cluster of the Geneva Conventions and other elements of the "Law of Wars".  I. International treaties, covenants and declarations  Shaped 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' 15 to 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. 113  J. Donelly, supra note 110 at 49: Non-Western Concepts of Law.  114  UN Conference on International Organizations Documents (1945), vol.XV at 335.  115  UN-Charter, Articles 1,13,55 and 76.  44 Assembly 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 was adopted, 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' and in the view of the International Court of Justice', part of customary international law. Through two international documents, The International Covenant on Civil and Political Rights' and the International Covenant on Economic, Social and Cultural Rights'', the principles became "statute" law for the state parties of the respective Covenants. The first of the two is equipped with a Committee which is obliged to ensure the respect of those rights mentioned in the Covenant. Individual complaints , however, are only possible upon the ratification of an Optional Protocol'''. The second Covenant had been recently equipped with a similar Committee'''. Within the United Nations, the Economic and Social Counsel  116  UN GAOR, 3rd Sess. Res. (1948), part. I at 71.  'Sir H. Waldock, "The political background and historical development of the European Convention on Human Rights" (1965 Supplement) 14 International and Comparative Law Quarterly 15, with further references. "'Namibia Case, [1971] I.C.J. Rep. 16. 999 U.N.T.S. 171. In effect since August 19, 1976.  119  993 U.N.T.S. 3. Adopted December 19, 1966, in force since January 3, 1976.  120  121  999 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 of Governmental Experts (1983-1986) had only monitoring function. The Committee is formally an 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 ensure them: the Human Rights Commission'. The enforcement of human rights is intended to be achieved through several procedures, which are named after the ECOSOC resolution which set them up 125 . 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. This diversification has some dangers, as individuals might not be aware of their existence or address the wrong body; moreover, it becomes more and more difficult to maintain a consistent approach to interpretation 127 .  II. Regional instruments to protect human rights" P. Alston, "Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights". (1987) 9 Human Rights Quarterly, 332. 'According to Articles 55,56,60 and 62. 'Article 68. 125  728 F, 1235 (XLII) public and 1503 (XLVIII) non-public.  "Such as the International Covenant on the Abolishment of all Forms of Racial Discrimination, 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 be found 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. 128  Re- 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. Due to the vast differences among the cultures and political systems in the countries we refer to as being situated on the Asian Continent, no noteworthy inter-governmental initiative to protect human rights has been taken, with the exception of the below mentioned Arab initiative. The  46 A. Europe  European human rights protection is based upon the European Convention for the Protection of Human Rights and Fundamental Freedoms'''. Today, all western European nations are state parties to this Convention, and a number of former socialist countries have applied for membership or are already parties. The substantive part of the Convention has been altered several times by additional protocols. Some of those protocols serve a different purpose as they do not alter the Convention, but enlarge the rights of the individual, such as providing for a procedure for the individual complaint. All Western European Nations are state parties to this optional protocol, though some of them have made severe reservations' to limit the treaty powers. The Convention provides in Articles 2 to 16 civil and political rights and freedoms similar to those set out in the Universal Declaration. Economic and social rights are covered by a special European Social Charter 131 . The Convention has three major organs: the Commission 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 number of Asian states. For example the Convention against Torture has only been ratified by the Philippines. The action taken so far is limited to non-governmental organizations. 213 U.N.T.S. 221. Adopted November 4, 1950, in force since September 3, 1953, as amended by the Additional Protocols 3, 5, 8 and 9, whereby 9 is not yet in effect. 129  'Such as Turkey, which equals a total opting out of the individual complaint, 1985 European Yearbook on Human Rights at 30. ' 3 '529 U.N.T.S. 89. Amended in 1992: (1992) 31 I.L.M. 155. 132  Articles 19 to 37. Rules of Procedure were adopted by the Commission.  133  Article 37.  47 the Council of Ministers, who tries to settle disputes and is charged with enforcing the judgements of the Court; and the European Court of Human Rights'. Two actions can be taken under the Convention, a state complaint which is mandatory upon ratification of the Convention itself and an individual complaint which requires the ratification of an optional protocol'''. If the Commission considers the complaint to be admissible and does not chose to address the Council right away, the complaint is submitted to the Court. Rules for interpretation for the Court are to be found in Articles 17, 18 and 60. Between 1955 and 1985 the 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. The Court has rendered so far 237 judgements" so far. The major problem today is the overwhelming number of complaints, which will only worsen with the entries of the former socialist 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 is presumed 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 Treaty Series, required by Article 102(1) of the UN Charter. A state may only claim to be bound by a treaty if the treaty is registered, Article 102(2) UN-Charter.  48 of the downfall of the Communist Empire, as Hungary triggered the mass escape of Germans during the summer of 1989, when it declared that it could not deny them the right to leave Hungary into Austria, being bound by the principles of the Helsinki final document.  14°  B. Africa  The basic document for inter-African relations is the Charter of the Organization of African Unity (0AU) 141 . This document reaffirms the principles of the UN Charter and the Universal Declaration of Human Rights. The OAU has maintained an ambivalent attitude towards the suppression of human rights in a number of independent African States, emphasizing the principle of noninterference in the internal affairs of member states at the expense of certain other principles, particulary the customary law principle of respect for human rights. 142 Following pressure from the United Nations, the African Charter of Human Rights and of Peoples' Rights 143 was unanimously adopted on June 26, 1981, by the 18th Assembly of the i4oHungary _ later became the first former communist country to join the European Convention. 141 Charter of the Organization of African Unity, adopted May 23, 1963. (1963) 479 U.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 internal affairs." Sekou Toure, African Research Bulletin (1979), 5329 B.  'In force since October 21, 1986, three month after the 26th ratification was received by the 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 and 1981 and in order to avoid confusing it with the 1963 Charter of African Unity. However, the original title continues to be used, even within OAU circles, see R. Gittleman, "The African Charter on Human and Peoples' Rights: a Legal Analysis" (1982) 22 Virginia Journal of International Law 667.  49 Heads of State and Government of the OAU, held in Nairobi. The Charter is divided into three major parts: Articles 1-26 deal with the civil, political, social and economic rights, Articles 2729 lay out the duties for individuals as well as for states and Art. 30-44 provide for an eleven member Commission, which is backed by a Secretariat (Article 41). The Commission is charged with processing information, conducting investigations, making recommendations and interpretations. The rules of procedure are contained in Articles 45-59. In addition, the Commission adopted a document containing specific rules of procedure'. Two different actions can be taken, either by communication between the states (Articles 47-48) or by addressing the Commission right away (Article 49). The other action is a complaint by an individual (or by any other nongovernmental entity) (Article 55-59). In addition, state parties have to supply state reports (Article 62) on a regular basis. Interpretation is guided by Articles 60 and 61. There is no Court, as the drafters of the African Charter concluded that formal adversarial procedures common to Western legal systems were inappropriate to African customs and tradition, which emphasize conciliation rather than judicial settlements of dispute'. This argument is widely under disputes, as Africa does not have one homogenous co-extensive culture. 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 and  144  9 HRLJ 333 (1988).  "'Commission to study the Organization of Peace. 29th Report, Regional Protection and Promotion of Human Rights in Africa (1980) at 30.  50 norms, generally possessed by most African ethnic groups'. Unlike the European (in Article 15) or the American Convention (in Article 27), the African Charter does not contain a derogation clause for war time or public emergency. However, it does contain third generation' human rights emanating from philosophical, ideological and economic bases. In addition the African Charter points out the importance of cultural aspects for the description identification and interpretation of human rights. The European and the American instruments are based on liberalism, as both derive from the United Nation Instruments. Those later ones were drafted by states with populations of European origin and largely Christian traditions. An example for this cultural aspect is the inclusion of rights of people which exists only in the African Charter' Some minor adjustments to the Charter had to be made in the form of amendments, as for example the drafters forgot to include to whom the states should address their 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 18th century in order to establish a prohibition of interference by the state with the freedoms of the individual. Second generation are social and economic rights which started with the socialistic revolutions against exploitation in the early 1900's and were directed at economic security and independence. The term third generation was introduced by Karel Vasak in the Lecture to the Tenth Session of the International Institut of Human Rights 1979. It contains human rights, such as development, environment, peace, communication and to share the common heritage of mankind. See for the emerging of new human rights: J. Swanson, "The emergence of new rights in the African Charter" (1991) 12 New York Law School International and Comparative Journal 307333. "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.  51 to get a permanent seat. To this point it travels with the OAU and still lacks some vital infrastructure such as a library.  C. Arabia  In the Islamic world some attempts were made to protect human rights. The League of Arab States established in 1968 the Permanent Arab Commission on Human Rights'''. This body drafted the Arab Declaration of Human Rights', which was widely disputed among the Arab states. Judged to be inconsistent with the Koran, the document "is considered to be dead now" 151 . After the expulsion of Egypt from the League in the early 1980's, the question was raised again and an Arab Convention on Human Rights 152 drafted, but the League's Council stalled further progress with the help of a resolution, which called for the sole implementation of the Koran as human rights basis". Due to the negative attitude of Arab States toward human rights protection there seems to be little chance for a regional protection system, as long as 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.  52 Inter-American human rights law" is set up in two overlapping frameworks, one based on the Charter of the Organization of American States' 55 , the other established by the American Convention on Human Rights' s '. The latter has been amended by two additional protocols, the Protocol of San Salvador' s' concerning economic social and cultural rights. and the 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 declaration according to the terms of Article 62, by which they recognize the jurisdiction of the Inter' 54M. Jan nis,, An Introduction to International Law (Boston: Little, Brown and Co., 1988) at  192-197.  ' 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 Indias from December 5, 1985, approved November 14, 1988, (1989) 28 I.L.M. 156, however not in force 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 to Article 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 the Optional Protocols, as President Fujimori tries to introduce the death penalty again, in order to be able to execute the leader of the "Shining Path". This will drive Peru further into world-vide isolation as it would not only be a breach of the Pact of San Jose, but also a breach of the international customary law of "nulla poena sine lege", as the death penalty can only be applied when it was in force before the committing of the crime. "Perus Praesident Fujimori will Todesstrafe wieder einfuehren" Sueddeutsche Zeitung (9 October 1992) 9. ' 59The OAS itself was founded in 1890 as the International Union of American Republics It 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.  53 American Court of Human Rights.  1. The Inter-American Commission on Human Rights  a. Historical development  The original OAS Charter contained very little about human rights, proclaiming only "the fundamental 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, the American Declaration of Rights and Duties of Man", adopted on May 2, 1948, almost eight month prior to the United Nations approval of the Universal Declaration of Human Rights. The American Declaration, like the European Convention on Human Rights, enumerates substantive rights 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 the implementation 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 the right to develop its cultural and economic life freely and naturally. In this free development, the State 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.  54 record with an understanding that Article 5 (j) of the OAS Charter did not through incorporation by reference transform the provisions of the American Declaration of the Rights and Duties of Man 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", and there 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 Commission formally interpreted Article 9 (b) of its Statute as empowering it "to make general recommendations to each individual member state, as well as to all of them"'. In accordance with this interpretation, the Commission started to study the situation of human rights in several American Republics, the governments of which were engaged in large-scale violations of human rights. The Commission addressed these through issuing recommendations. Reports were published, documenting the violations and complaints were examined by hearing witnesses and undertaking on-site investigations. The Commission tried several times without success to obtain 'Inter American Juridical Committee, Report to the Inter-American Council of Jurists Concerning Resolution XXXI of the Bogota Conference, September 26, 1949, reprinted in Pan American 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 that have not ratified the Convention "human rights are understood to be ... the rights set forth in the 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).  55 authorization to act on individual communications. Finally, the Commission's mandate was strengthened by the Second Special Inter-American Conference", the Commission was authorized to examine communications from individuals, charging violations of the rights protected by the Declaration and the Charter. This enlargement of powers was formalized in 1966 by the Council of the OAS through amendment to the Statute of the Commission' 9 . The amendment confirmed, among other things, the power of the Commission to consider individual complaints. 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' and described its function as being "to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters'''. The result of those amendments was the incorporation of the Statute of the Commission and the American Declaration of the Rights and Duties of Man into the OAS Charter by reference. The entire system 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). Article 9 (bis), Report on the work accomplished during its thirteenth session, April 1828, 1966, OAS Off Rec. OEA/Ser. L/V/II 14, Doc.35 (English), at 22-24 (1965). 169  '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.  ' 72 T. Buergenthal, "The revised OAS Charter and the Protection of Human Rights" (1975) 69 A.J.I.L. 333.  56 signature in 1969, it took until 1978 for it to receive the eleven ratifications required for its entry into force. During that nine-year period Article 150 of the revised Charter provided that "until the Inter-American Convention on Human Rights, referred to in Chapter XVIII, enters into force, the present Inter-American Commission on Human Rights shall keep vigilance over the observance of the human rights." Upon entry into force of the American Convention on Human Rights in 1978, the Commission started to serve a dual purpose. It works for the OAS-Charter system as the investigatory organ under the OAS procedure, and also functions as the preliminary institution for the Inter-American Court of Human Rights'. For that reason, the Commission 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 member countries" of the OAS, elected by the OAS General Assembly for four year once renewable terms. 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 Ninth Regular Session held in La Paz, Bolivia, October 1979, text printed in Handbook of the Existing Rules 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 International Journal of Law Libraries 253. 'American Convention on Human Rights, Articles 34-37 and 41. See also Article 2 and 3 of the Statute of the Inter-American Commission on Human Rights.  57 the seat of the Commission nor to devote full and exclusive attention to its tasks'. The chairman is elected by the vote of an absolute majority of the members'''. Under its regulations, the Commission is authorized to hold up to eight weeks of regular meetings per year and 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 the Secretary General of the Organization'''. The Commission's budget and the emoluments of the members are fixed by the Council of the Organization, to which the Commission must present an annual agenda of activities. Until 1977, staffing had been frozen at four lawyers despite a caseload that had increased nearly 1000 % since 1973. The staff has since been expanded, and there are now nine lawyers in addition to the Executive Secretary. The Commission usually receives about 500 complaints per year, with each complaint frequently involving more than one victim. In 1980, when members of the Commission visited Argentina, 5000 complaints were received 181 .  c. Procedures and effects'  337.  "T. Buergenthal, "The Inter-American Commission on Human Rights" (1965) 59 A.J.I.L. '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-American Court 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 International Journal of Law Libraries 254.  58 The Commission pursues three basic activities: first of all, it considers individual complaints regarding specific violations of human rights by a given member state; secondly, it prepares and publishes country reports on the general situation regarding human rights in a given country; 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 the annual report and publication of the Inter-American Yearbook of Human Rights'. The procedure commences as follows. Any person or group of persons or legally recognized nongovernmental entity may submit petitions to the Commission, in any of its official languages, on his/her or its own behalf or on behalf of a third person, with regard to alleged violations of human rights recognized in the American Declaration of the Rights and Duties of Man. 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 exceptions mentioned 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 no effective remedies to exhaust. The second requirement is to show that the subject of the petition or 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.  59 petition without disclosing the identity of the petitioner unless it is authorized to do so, and requesting information. In serious cases the Commission may request the government in question to allow the Commission to conduct on-site investigations. If the government fails to provide the requested information within a period of 180 days, or if the evidence provided does not lead to a different conclusion, the Commission will adopt a decision declaring the facts related in the denunciation to be true and it will formulate the suggestions and recommendations it considers appropriate. 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 and present evidence in rebuttal. This rebuttal will be forwarded to the government giving them a thirty day period to make final observations'. To reach a friendly settlement' 86 the Commission places itself to the disposal of the parties concerned at any stage of the examination. If no friendly settlement is reached, the Commission will examine the case including all the gathered evidence. From this basis, the Commission will formulate a conclusion, make recommendations and suggestions. This conclusion will be forwarded to the State party concerned'. If the State fails to adopt the recommended measures, the Commission may either include the matter in its annual report to the General Assembly or choose any other means which it considers appropriate. One example is the drawing of a country report. Country reports are in  20. 20 . 20.  'American Convention on Human Rights, Article 48 and Statute of the Commission, Article 'American Convention on Human Rights, Article 49 and Statute of the Commission Article 'American Convention on Human Rights, Article 50 and Statute of the Commission, Article  60 general based on information obtained through individual complaints as well as other information available to the Commission from a variety of sources. The Commission does have some impact in the real world "as it does seem to have saved lives and nurtured the democratic freedom'. However, governments do not tend to admit delinquencies. If an individual is freed, his or her liberation will be advertised as an act of official grace. Governments often do not to cooperate with the Commission. Most unfortunately the real sanctions and incentives remain at the disposal of governments.  2. The Inter-American Court of Human Rights 1 "  a. Historical development  The Court was established by the American Convention on Human Rights. The judges constituting 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 of Procedure'. A resolution adopted by the Assembly in 1978 located the permanent seat of the Court  ' 88 T. 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.  61 in Costa Rica.  b. Composition  The Court consists of seven judges , nominated and elected by the states parties to the Convention'. The judges must be nationals of an OAS member state, but they need not have the nationality of the states parties to the Convention 193 . The regular term of the judges is six years, 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 the work of the Court and represents it to the outside. The President, the Vice-President and a third judge who is designated by the President compose the permanent Commission. The Secretariat' of the Court is headed by the Secretary, who is appointed by the Court for a five year renewable term. Unlike the Commission, whose Secretary is appointed by the Secretary General of the OAS, the Court has the power to ensure the loyalty of its chief administrative 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. American Convention on Human Rights, Article 53. The most prominent of such members was Thomas Buergenthal from the USA. 193  'American Convention on Human Rights, Article 59.  62 The Court has adjudicatory jurisdiction over disputes regarding whether a state party has violated the human rights of an individual guaranteed by the Convention. Further, the Court has advisory jurisdiction which empowers it to interpret the Convention and other human rights instruments at the request of an OAS member state or of various OAS organs. Adjudicatory jurisdiction commences either by a state complaint, which demands a special 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 way of commencing this jurisdiction is through the complaint of an individual, which can also be submitted by a group of persons or any recognized nongovernmental entity. Upon ratification of the Convention the state party becomes liable to those complaints. The complaint is submitted to the Commission in order to complete the procedures of Articles 48-50. The first stage is to confirm the admissibility of the complaint in ensuring that the preconditions of Articles 46 and 47 exist. These are identical to those discussed in relation to the Commission: the exhaustion of local remedies or its equivalent, and ensuring that this case is not pending in front of any other international body. For those requirements the Court may grant a waiver, which can go even as far as the omission of the entire Commission procedure'. A slightly different issue was presented to the Court by the Government of Costa Rica. In this case, even before a private complaint was filed with the Commission, the Government petitioned the Court to determine whether Costa Rica had violated the human rights  195  American Convention on Human Rights, Article 62.  19 6T.  239.  Buergenthal, "The Inter-American Court of Human Rights" (1982) 76 A.J.I.L. 231 at  63 of a young woman who was murdered by one of her guards in a Costa Rica jail. In submitting the case directly to the Court, the Government of Costa Rica formally claimed the right to waive the proceedings before the Commission. The Court ruled against Costa Rica and stated that the proceedings before the Commission have not been created for the sole benefit of the States, but also in order to allow for the exercise of important individual rights'. The second stage of the Commission procedure is the investigation. If the state party concerned does not provide the information requested within 180 days the Commission regards the submitted facts as being true. So far this rule has been used extensively. The Commission investigates the case by holding hearings, sighting documents and questioning witnesses. In addition they may hold on site investigations. At any stage of the procedure they are offering their good services for a friendly settlement. If the friendly settlement has not been reached by the end of this stage, the Commission draws a report, which sets forth the facts and conclusions. This report is transmitted to 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-American Court of Human Rights. The term "concerned" is still disputed; it is unclear whether it includes other 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'''. This decision 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.  64 injured party is entitled to and the steps which are to be taken to remedy' the situation. In the majority of the decisions this meant financial remedies to the surviving heirs of the victim 201 . An extraordinary remedy is mentioned in Article 63 (2): this remedy, also used in preliminary decisions, includes provisional measures, such as ordering the Government in question to ensure the safety of a witness. In recent years, the Court has used those to cope with the disappearance of people in Central and South America. The enforcement of judgments is limited'. The Court can only inform the OAS General Assembly'. In the majority of the cases the Court has to rely on the cooperation of the state parties and its moral authority. The advisory practice of the Inter-American Court of Human Rights'', mentioned in Article 64, had been used extensively before the Court rendered its first judgement. So far the Court has rendered twelve advisory opinions"; in nine it interpreted human rights instruments, in one the compatibility of domestic law with international instruments, in one it dealt with both issues and in one it declined to respond. The advisory jurisdiction of the Court  "American Convention on Human Rights, Article 63. Example: Velasquez Rodriguez Case, Decision 29 July 1988, Inter American Yearbook on Human Rights 1988 at 997. 201  '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.  65 is not totally unique, as similar procedures exist in both other regional instruments'. There are three different ways to obtain an advisory opinion: either an OAS member requests an Interpretation of the Convention or of any other treaty which is concerned with the protection of human rights in the American States, or any organ of the OAS which is listed in Chapter X of the Charter may submit the same request. The third way is that any OAS member may demand an opinion on the compatibility of any of its domestic laws with the above mentioned instruments. The problem of "other treaties" was solved by a decision of the Court: "the power to interpret any treaty as long as it is directly related to the protection of human rights in a Member State of the Inter-American system"." The distinction between contentious and advisory jurisdiction is not always clear. In the third advisory opinion, concerning the death penalty in Guatemala, requested by the Commission, the question was raised', whether the proceedings were really contentious proceedings under the guise of an advisory opinion, conducted in order to gain jurisdiction over an OAS member state (Guatemala) that at the time did not recognize the contentious jurisdiction of the Court. 'The European Court has a narrow advisory jurisdiction which permits the Court to respond to requests from the Committee of Ministers for opinions on questions outside the Court'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 the request of an OAU institution, an OAU recognized organization or any state party to the Charter. 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. A. Hennelly, Human Rights in the Americas: the struggle for consensus (Washington D.C.: Government Printing Office, 1982) at 180. 208  66 CHAPTER FOUR: Interpretation of human rights treaties: The example of the Inter-American System  I. By the Inter-American Court  A. In cases  1. Viviana Gallardo 209  a. History of the case  Viviana Gallardo, a Costa Rica citizen, was held in preventive detention in a police post awaiting trial in connection with charges resulting from the killing of a number of Costa Rican policemen by a group of individuals identified as terrorists. One of her guards, a Costa Rican Civil Guard member, shot her to death on 1 July 1981. The Government of Costa Rica submitted the case to the Inter-American Court of Human Rights while stating that the Government would waive the right of the exhaustion of domestic remedies and all rights connected with preliminary measures before the Commission (Articles 48-50). If the Court were to decline to accept the case, the Government demanded its submission to the Inter-American Commission. 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.  67 its final decision, the Court held the case inadmissible on the grounds that none of the above mentioned rights could be waived, as they had "not been created for the sole benefit of the States, but also in order to allow for the exercise of important individual rights, especially those of the victims" 210 . The Court therefore submitted the case to the Commission. After the Commission settled the matter, the Court struck the case from its list in a third decision in 1984.  b. Methods applied  The method of the Court can best be classified as being objective, as the text was the major basis of interpretation. In addition some consideration is given to the object and purpose of the treaty. The Court stressed that the rights of the individual have to be preserved  211  . It  rejected to use the subjective method, where the intentions of the state parties would have been of interest. In addition, the Court tried to avoid the use of a dynamic approach. This can best be seen in the following statement: "...that the Convention be interpreted in favour of the individual, who is the object of international protection, as long as such an interpretation does not result in a modification of the system."' In pointing out the dangers of a "modification of 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 of international protection, as long as such an interpretation does not result in a modification of the system." Ibid. 2 HRLT at 331. 212  2 HRLJ 331.  68 c. Rules applied  The Court ruled that the mentioned rights and procedures were not subject to waiver by a state party. This was done by interpreting the text of the Convention and the respective rules of procedure. The Court cited Article 31 of the Vienna Convention, stating, "Naturally, under international law relating to the interpretation of treaties, the aforementioned provision must be read in accordance with 'the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose' " 213 . From this starting point the Court evaluates the role of the Commission under the Convention and calls it "a channel through which the Convention gives the individual qua individual 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 remains ambiguous, and does not state "expressis verbis" that the preliminary actions before the Commission have to be fulfilled. The Court itself lessens the severity of its decision by adding further on that in special cases the preliminary actions may be waived. However, in invoking the Vienna Convention, the Court established rules of interpretation which it has been following since that time, accepting those rules as the codification of the customary international law.  2. Velasquez Rodriguez 214  213  2 HRLJ 332.  Velasquez Rodriguez Case (Honduras) (1988), Inter-Am. Ct. H.R. Ser. A, Annual Report of the Inter-American Court of Human Rights: 1988, OEA/Ser.L/V/ 111.19/ doc.13 (1988) 35 214  at 66, 28 I.L.M. 321, 1987 Inter-American Yearbook on Human Rights at 772.  69 a. History of the case  On the afternoon of September 12, 1981, Angel Manfredo Velasquez Rodriguez, a 22year-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 El Manchem of the city of Tegucialpa after having been charged with "political crimes". On September 17, 1981, he was transferred to the First Infantry Battalion, and once again interrogated 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 information on the matter. The Commission, not having received any reply, repeated this action on November 24, 1981, October 6, 1982, March 23 and August 9, 1983, while threatening to presume the allegations to be true according to Article 42 (at that time Article 39) of its regulations. On October 4, 1983, the Commission issued a decision'', presuming the allegations to be true, and ruled that the Honduran Government was in breach of Articles 4 and 7 of the Convention (right to life and right to personal liberty). It demanded that the Honduran Government prosecutes the responsible persons and threatened to include the matter in its annual report to the OAS General Assembly if the responsible persons were not prosecuted within 60 days. Finally, on November 18, 1983, the Honduran Government responded. In this response the Government pointed out that the domestic remedies had not been exhausted. In addition the  "'Resolution 30/83.  70 Government 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 "Salvadoran guerilla groups". The Commission demanded further information on the exhaustion of domestic legal remedies and decided to continue its study of this case on May 30, 1984. This request was repeated on January 29, 1985, along with a warning that a final decision would be rendered in March 1985. On March 1, 1985 the Government of Honduras demanded a postponement of this final 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 of information. On April 7, 1986, the Government informed the Commission about the outcome of the proceeding before the First Criminal Court filed on behalf of the disappeared Velasquez Rodriguez. The tribunal had dismissed the complaint against every suspect except General Gustavo Alvarez Martinez, who had left the country and had not given testimony. The decision was affirmed by the First Court of Appeals. The Commission found this information insufficient to 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 follow the procedure established for the admissibility of a petition. In addition it complained that the Commission did not consider the information provided on exhaustion of local remedies and that these local remedies were definitely not exhausted.The Government stressed several other "mistakes" of the Commission: that it did not follow the established procedures for the preparation of a report, that it ignored the provision regarding friendly settlement and that the  'Resolution 22/86.  71 preliminary procedures of Articles 48-50 had not been executed. The Commission replied that since the Honduran Government had seriously violated the rights of a human being, the substantive or procedural objections raised by the Government had no legal basis under the relevant articles of the Convention or under the standards of international law. Further, it asked the 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, as Honduras had been party to the Convention since September 8, 1977 and had recognized the contentious jurisdiction of the Court on September 9, 1981. It also ruled that it rejected all preliminary objections of the Honduran Government except the one concerning the exhaustion of domestic legal remedies. The Court received documents and evidence and held a hearing between September 30 and October 7, 1987. During this hearing it ordered the submission of further evidence. Among the evidence was the testimony of several witnesses who were members of the Honduran Armed Forces. The Honduran Government demanded that closed hearings be held on Honduran territory with those witnesses because of security reasons. The Court 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 in the 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 Court about the measures taken. Both orders were issued under the preliminary measures provision of Article 23. The Court received further evidence and, on July 29, 1988, issued its first final judgement in a contentious case. It ruled that the Honduran Government had violated the rights  72 of Velasquez Rodriguez under Articles 4, 5 and 7 of the Convention, all of them in conjunction with Article 1 (right of life, humane treatment and personal liberty), and awarded the next of kin fair compensation. On July 21, 1989 the Court issued a judgement setting forth the compensation in local currency, 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 appeared to be meaningless. Therefore the Court issued on August 17, 1990 an interpretation of the judgement of the compensatory damages of July 21, 1989. In this interpretation, the amount was expresses in "hard currency". The Court used as a legal base for this change of its previous judgement the principle of "restitutio in integrum". This principle of a fair compensation for the next of kin, had not been mentioned in the previous judgement, but was, according to the judges "object and purpose" of the judgement.  b. Methods applied  The Court was faced in this first contentious case with a number of problems. One of these, which can be followed throughout the case, is the problem of fact-finding. As the Court has to rely on the material submitted by the parties, it is dependent on the cooperation of all of those involved. The Commission was forced to make threats to use all its (limited) powers to receive information from the Government. Then the Court was faced with the problem that the Commission did not follow the procedures established in the Convention and their own rules of procedure. According to my view, the Commission took too broad a view in trying to obtain a  73 full perspective of the human rights situation in Honduras at that point in time and did not closely enough consider the individual cases that the Commission was actually handling and indeed mandated to deal with. The Court evaluated those procedural steps against the will of the Commission, which seemed to consider the Court to be something like a court of review. This view 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 the system for the protection of human rights entrusted to the Commission and the Court to attain its 'appropriate effects' . " 217 This approach leaves it open to the Court to evoke the effects it deems to be appropriate at any given point in time. Regarding the question of not considering a friendly settlement the Court first took a literal approach to the Convention, which indicated that the provisions appeared to be mandatory. However the Court concluded that this provision had to be interpreted in the context of the Convention and therefore must be an optional provision: "...if the phrase is interpreted within the context of the Convention, it is clear that the Commission should attempt such friendly settlement only when the circumstances of the controversy make such an option suitable or necessary, at the Commission's sole discretion. 11218 Most important, the Court realized that the American Convention did not cover "expressis verbis" the disappearance of persons. It was therefore forced to create this crime through 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 crime against humanity, although there is no treaty in force which is applicable to the State  217  9 HRLJ 242.  ' 1987 Inter-American Yearbook on Human Rights at 790.  2 8  74 Parties to the Convention and which uses this terminology'''. The Court tries to justify its judgement by referring to resolutions of the General Assembly of the OAS: "The General Assembly of the OAS has resolved that it 'is an affront to the conscience of the hemisphere and constitutes a crime against humanity, ..., this practice is cruel and inhuman, mocks the rule of law, and undermines those norms which guarantee protection against arbitrary detention and the right to personal security and safety'. "220 With the help of this quote, the Court closes the gap to the written provisions of the Convention. The Court gives an explanation for the absence of a provision for disappearances in the Convention as well: "Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use...is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years." The Court therefore interprets the Convention not in the light it had, when the Convention was being drawn up (1969), but under the present day circumstances, when this case was brought in front of the Court (1988). This is the classical example of the dynamic interpretation, which leaves all subjective approaches, the intentions of the treaty partners, as well 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 most modern and flexible and, for the individual who is supposed to be protected by the treaty, most favourable interpretation method.  2199  HRLJ at 238.  220Thid  .  75 c. Rules applied  The Court always begins its considerations with the text of the Convention. This pattern began with this case and has been followed until the present. A difference may be noted between the interpretation of procedural norms and the substantive norms covering the rights of the individual.  3. Fairen Garbi and Solis Corrales 221  a. History of the case  Francisco Fairen Garbi, a 28-year-old student, and Yolanda Solis Corrales, a 28-year-old teacher, both Costa Rican nationals, disappeared in Honduras on December 11, 1981, while in transit through that country on their way to Mexico. Both left Nicaragua en route to Honduras on December 11, 1981 at 4.00 p.m., were seen by witnesses on December 12, 1981 in Tegucigalpa, and then never heard of again. A petition was filed with the Commission on January 14, 1982. The relevant parts were transmitted to the Honduran Government on January 19, 1982. The Government informed the Commission on March 8, 1982 that Garbi and Corrales had 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 as  Fairen Garbi and Solis Corrales et al. Case, 1987 Inter-American Yearbook on Human Rights at 814, Inter-Am. Ct. H.R. Ser. A (1989) at 73. 221  76 a newspaper advertisement, whereby it was either claimed that neither of the above ever entered or just one entered Honduras, but left the following day to Guatemala. Documents appeared stating that they had left Guatemala and entered El Salvador. Statements were made by the Commission and the Honduran government throughout the following two years which confused the situation concerning the facts even more. The Commission finally adopted a resolution on October 4, 1984 recommending that the Honduran Government undertake a thorough investigation. Since it deemed the new investigation of the Government insufficient, the Commission referred the matter to the Court through Resolution of April 18, 1986. The Court found the case admissible after rejecting all objections of the Government except the one concerning the exhaustion of domestic remedies. The case was dismissed through judgement of March 15, 1989,' since the evidence in this case was so confusing that reasonable doubt remained that Garbi and Corrales were actually detained in Honduras.  b. Methods applied  The Court was confronted with procedural questions, such as the non-exhaustion of local remedies. The Court referred here to its previous judgement in the Velasquez Case. The Case proved however the insufficiency of the regulations of evidence gathering in the Convention. The Court tried to establish some standards for the burden of proof, by citing several judgements of  222  Fairen-Garbi and Solis Corrales (Honduras) (1989), Inter-Am. Ct. of H. R. Ser. A at 73.  77 the International Court of Justice223 . The Court stressed its right to determine which rules of procedure from the domestic.legal system it deems to be applicable: "Since this Court is an international tribunal, it has its own specialized procedures. All the elements of domestic legal procedures are therefore not automatically applicable. The above mentioned principle is generally valid in international proceedings, but is particularly applicable in human rights cases." 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 criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals, who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible."' This outline for object and purpose of human rights treaties must be kept in mind, when evaluating the methods and rules of interpretation of the Court.  c. Rules applied  The Court was faced with the same problem as in the Velasquez case, that the disappearance of persons is not explicitly covered in the American Convention. Once again, in citing the relevant Articles 4, 5, 7 in conjunction with Article 1, the Court interpreted the Convention 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 in and 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.  78 supported through citing Article 31 (1) of the Vienna Convention as the primary rule for interpretation. There are no differences to the rules of interpretation which were used in the Velasquez Case, since initially both cases were combined and the final judgements rendered shortly one after the other.  4. Godinez Cruz 226  a. History of the case  Saul Godinez Cruz, schoolteacher, left his house by motorcycle at 6.20 a.m. on his way to work. According to witnesses, a man in military uniform and two civilians stopped him and placed his motorcycle and Cruz into a double cabin vehicle without license plates; he was never heard of again. The same day a complaint on his disappearance was filed with a local Court and with the Commission. The relevant parts of the complaint were transmitted to the Honduran Government on November 2, 1982; the Government's response was that the request has been forwarded to the competent authorities. The Commission repeated its request on June 1, 1983, receiving the reply that the investigations were under way. By resolution on October 4, 1983 the Commission presumed the allegations to be true according to Article 39 (now 42) of the regulations, rendered another 60 day period to punish the responsible persons, and threatened to include the case into  226 Godinez  Cruz Case, (1989) Inter-Am. Ct. H.R. Ser. A at 85, 1987 Inter-American  Yearbook on Human Rights at 858.  79 its annual report to the General Assembly. Statements were exchanged over the following three years whereby the exhaustion of local remedies in the form of several writs of habeas corpus was 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 objections of the Government concerning procedural matters except for the one of exhaustion of local remedies. The exhaustion of local remedies has a certain importance in the context of human rights protection'. On January 20, 1989 228 , in the final judgement, the Court ruled that Honduras had violated the alleged provisions of the Convention.  b. Methods applied  This is the third in a series of cases involving the question of disappearances in  227Human rights protection should not be confused with the diplomatic protection one receives when detained in a foreign country. This diplomatic protection is carried out by the government of one's country of origin; under international law the state can claim reparations for the injuries the individual has suffered. Human rights protection covers anybody within the territory of a country which has adhered to a human rights protection treaty, regardless of whether he is a national. Before the government can be made responsible before an international human rights protection agency such as the Inter-American Court and evaluations are made as to whether this government did violate treaty obligations it had to fulfil, due to the rule "pacts sunt servanda" in international law, the government must have had the opportunity to hear the complainants' 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 in International Law: Its rationale in the international protection of individual rights, (Cambridge: University Press, 1983) at 14ff. 228 Godinez  Cruz Case (Honduras) (1989). Inter-Am. Ct. of H. R. Ser. A at 85.  80 Honduras. All the cases have in common that disappearance is not covered in the American Convention and that the local remedies were not exhausted (or not exhausted according to the local laws). Both circumstances demanded a very dynamic approach to interpretation in order to make the cases admissible. The most surprising difference between the previous case and this case is the fact that the Court rendered a judgement against Honduras and did not dismiss the case as it had done with the previous case. The evidence in both cases was highly disputed and both times the burden of proof remained the major obstacle. The Court could not reach the conclusion that Honduras has violated the Convention in the Fairen Garbi Case, even after it applied its standards of proof, which it had developed in this judgement. The Court stated that the "standards of proof are less formal in an international legal proceeding than in a domestic one"." In the Godinez Cruz Case, the Court did not alter these standards of proof. However it reached the opposite conclusion that Honduras had violated the Convention in this case. The Court seems to have reached this opposite decision due to a mistake made by the Honduran government. The Court pointed out: "Since the Government only offered some documentary evidence in support of its preliminary objections, but none on the merits, the Court must reach its decision without the valuable assistance of a more active participation by Honduras, which might otherwise have resulted in a more adequate presentation of its case". 230 This means that Honduras could have easily reached a favourable verdict concerning the preliminary objections to the question of non-exhaustion of local remedies, if the government of 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.  81 merits of the case. The Court first had to admit that: "...although the Court has not received any direct evidence that the disappearance of Saul Godinez was the work of governmental agents, there does exist considerable circumstantial evidence with sufficient weight to establish the judicial presumption that this disappearance was carried out within the framework of the aforementioned practice. " 231 Again, due to the noncooperation of the government, the Court concluded that Honduras had violated the Convention: "...there has been no other attempt by the government to explain the facts nor any statement offered to prove that Saul Godinez had been kidnapped by common criminals or by other persons unrelated to the practice of disappearances existing at that time _ “ . 232 This is revolutionary in international law to the extent that the noncooperation with an international tribunal may lead to the ruling that a party violated the treaty. This example shows how much the sovereignty of a state is penetrated through human rights treaties and that the treaty partners suddenly are under obligations which they had never dreamed of when they concluded the treaty. This evolutive method of the Court shows the dynamic approach in its best condition.  c. Rules applied  Again the textual approach was in the foreground followed by the object and purpose of the treaty rule. The rules used were not different than the ones used in the two previous  231  Ibid. at 142.  232  Ibid. at 141  82 judgements as the three of them were rendered almost at the same time and in the beginning all three cases were tried in conjunction.  5. Cases pending before the Court  a. Bustios and Rojas 233  This case involves two journalists, one of whom, Hugo Bustios Saavedra, was killed and the other, Eduardo Rojas Arce, wounded, while they were on their way to a city in Peru on November 24, 1988. After this assault death threats by military personnel were made against the wife of the victim and one of the witnesses. Another witness, Alejandro Ortiz Serna, was killed along with two other people even after they had requested a guarantee of safety from the Attorney General. On May 16, 1990, the Inter-American Commission requested that the Government safeguard the above mentioned and several other witnesses by resolution. In the same resolution the Commission requested the Court to issue an order. On June 5, 1990 the President 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 of an order to the threatened persons to appear in a military installation to coordinate protective measures. Since the military itself was considered the cause for the danger, this measure was considered to be insufficient. The Court therefore issued an order in form of a preliminary measure confirming the provisional measures of its president.  233 Bustios  and Rojas Case, 11 HRLJ 257.  83 With regard to interpretation the interesting part of this case is limited to the question of whether the president of the Court had the authority to issue a preliminary measure or not. When restrictively interpreting Article 23(4) of the Statute of the Court, the President does not have the competence to issue such an order. However his action was sanctioned by the Court itself through the confirmation of his order two month later. This broad interpretation resulted in a tacit modification of the treaty, as no state party to the treaty objected to this interpretation of the Court.  b. Aloeboetoe2'  This case is different in so far as it involves the torture and killing of indigenous people in Suriname (former Dutch Guiana). A group of twenty unarmed maroons (bushnegroes) were stopped on January 1, 1988, by soldiers, and tortured with bayonets and other weapons under the allegation that they belonged to a terrorist group. The torture took place in the presence of some 50 persons. The soldiers continued torturing them, including urinating on the victims, even after they were made aware of the fact that the victims were dwellers of a nearby village. Seven of the twenty were taken in a military vehicle to a different place and ordered to dig their own graves; six were shot to death, while one who tried to escape was critically wounded and abandoned. The following day, the remainder of the group demanded information from the authorities on the whereabouts of the seven. Nobody was willing to tell them. They searched the countryside and finally found the critically injured seventh person, who died later in a hospital.  'Aloebotoe Case, 13 HRLJ 140.  84 The Commission referred the case to the Court on August 27, 1990, since the Government of Suriname had not responded. In a counter-memorial before the Court Suriname argued that it was never proven that the violations had occurred. In a second hearing Suriname accepted all responsibility for the killing and torturing.  The case is remarkable for several issues regarding interpretation. As usual in the cases brought in front of the Court, local remedies were not thoroughly exhausted. The sudden acceptance of responsibility by Suriname relieved the Court of the necessity of lengthy factfinding, in regard to which it had experienced some severe difficulties in previous cases. The Court had to interpret the Convention on the question of whether it was possible for a state to plead "guilty" or whether the evidence should be gathered anyway, as the question of assessing the damages was still left open. The Court concluded that the state had given itself to the mercy of the Court concerning the assessment of the damages. As this interpretation was not challenged by any of the state parties, it has now become a precedent, which means that every state taking full responsibility will have to be treated alike. The effects of this action is questionable. What happens if a state takes responsibility for an action where it is unclear how many people suffered injuries? If the state can prove after the assessment of damages that some of the persons claiming damages actually were not harmed at all, does the Court have to reopen the case and gather evidence? It might be a failure of the Convention that the Court is not equipped with a mediation procedure, like the friendly settlement of the Commission, which could circumvent such problems.  85 c. Gangaram-Panday 235  Asok Gangaram-Panday was detained by Military Police at the Airport in Paramaribo in Suriname. The military police later reported that he had hanged himself in his cell in Fort Zeeland. According to an autopsy provided by the Government this appeared to be true. The Government did not respond to requests made by the Commission for further information, and therefore the Commission referred the case to the Court on August 27, 1990. The Court held a hearing whereby the pathologist and the military auditor of the Government of Suriname in charge of the incident were heard. During the hearing the Government pointed out several formal mistakes of the Commission. 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 the Commission. The Court rejected those preliminary objections by referring to one of its previous judgements, the Velasquez case, in using its objective approach for interpretation with emphasis on the object and purpose rule. "The failure to observe certain formalities is not necessarily relevant when dealing on the international plane. What is essential is that the conditions necessary for the preservation of the procedural rights of the parties not be diminished or unbalanced and that the objectives of the different procedures be met. "236 One further objection, in which the government alleged the Commission to have committed an "abuse of the right of petition", has not been taken into consideration, since the  235  Gangaram-Panday Case, 13 HRLJ 142.  236  Ibid. at 145.  86 government failed to substantiate its claims. Again the Court showed that procedural mistakes by the states will be held more easily against the state than procedural mistakes of the Commission are held against the Commission. The objections of the government concerning the non-exhaustion of local remedies by Mr. Gangaram-Panday were rejected rather briefly by the Court in repeating the essence of its previous judgements on this issue. "Generally recognized principles of international law indicate, first, that this is a rule [the exhaustion of local remedies] that may be waived, either expressly or by implication, by the State having the right to invoke it, as this Court has already recognized... second, the objection asserting the non-exhaustion of domestic remedies, to be timely, must be made at an early stage of the proceedings by the State entitled to make it, lest a waiver of the requirement be presumed..." . 237 According to the Court the government had tacitly waived the right to object for the nonexhaustion 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 recognized principle of international law". Hereby the Court means the present day principle of international law, 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 defined to be the dynamic method. 238 The rule used for this interpretation can be classified as an inclusive implementation of the object and purpose rule. As no other state party challenged this verdict, it can now be accepted as a tacit treaty alteration. The Court held the case admissible but has not yet rendered a judgement concerning the merits.  237  13 HRLJ at 145.  238  See above Chapter Two, I, A, 4.  87 d. Neira-Alegira 239  Victor Neira-Alegria, Edgar Zenteno-Escobar and William Zenteno-Escobar were held in San Juan Bautista penal establishment in Peru, being charged with terrorist activities. On June 18, 1986 a mutiny occurred in that prison. The Government placed the prison under the command of the joint staff of the armed forces. The armed forces undertook what were later called "appropriate measures". The three were never heard of again. The Commission referred the case to the Court on October 10, 1990. The Court set March 29, 1991 as the date the memorial of the Commission had to be filed. The Commission filed its memorial on March 28, 1991. On June 26,1991 Peru argued that the Commission had no jurisdiction over the case and that the time limit for filing the petition had expired. The Court requested 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 the Government to be true, if the Commission would not comply. The Commission then delivered the requested minutes. As usual domestic remedies were not exhausted and Peru pointed out this fact to the Commission. A year later, when local remedies were exhausted, Peru pointed out that fact to the Court. The Court therefore applied the rule of estoppel: "International practice indicates that when a party in a case adopts a position that is either beneficial to it or detrimental to the other party, the principle of estoppel prevents it from subsequently assuming the contrary position. Here the rule of 'non concedit venire contra  "Neira-Alegria et al. Case, 13 HRLJ 146.  88 factum proprium' applies."' Concerning the exhaustion of local remedies the Court further ruled that as the Government did not refer to the non-exhaustion right away the right was tacitly waived as in the previous case. Concerning the delay of filing the case, the Court pointed out that this was due to requests 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 the repetition of the tacit waiver, it includes the first explicit mentioning of the estoppel principle and the curious fact that the penal procedures can be held against both parties, the one which brings the case in front of the Court as well as the defendant. This is not explicitly regulated in the 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.241  B. In advisory opinions  1. No. 0C-1/82 - "other treaties" 242  24  °Ibid. at 148.  241  13 HRLJ 407.  242  3 HRLJ 140, 22 I.L.M. 51.  89 a. History of the opinion  The Government of Peru requested on April 28, 1982 an advisory opinion of the InterAmerican Court on the question, how the phrase "or of other treaties concerning the protection of human rights in the American states" is to be interpreted. Article 64, the provision in question, reads in full: "1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by 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 that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments." The Government included with its question a set of three possible answers as to what kind of treaties could be meant by this provision: only treaties adopted within the framework or under the auspices of the Inter-American system, treaties solely concluded among the American States and treaties to which one or more American states are parties. The Court received the observations of several member states and OAS-Organs. A public hearing 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 dealing with the protection of human rights set forth in any international treaty applicable in the American States, regardless of whether it is bi- or multilateral, whatever the principle purpose of the treaty, and regardless of whether non-Member States of the Inter-American system are or have a right to become parties thereto.  90 b. Methods used in the opinion  The Court right away refers to the travaux preparatoires of the Convention. The Spanish text appeared to the Court to be the most helpful as Spanish was the working language during the 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 the clear intention of the parties to extend the Courts advisory jurisdiction as far as possible. After this very subjective approach, the Court however decided that the jurisdiction is limited by the object and purpose of the treaty. In doing so the regional context of the treaty as being one for the Americas was pointed out. This remarkable to that extent that the regional circumstance did not seem to have played a vital role in the drafting of the Convention. Otherwise it would not be understandable that the disappearance of individuals was not included as a violation which was quite serious already before the drafting of the Convention. The difficulties the Court had to go through in order to establish this violation through interpretation have been discussed above. The text is compared to the European Convention. This comparative work does not bring a lot of new facts to light, as the advisory jurisdiction of the European Court is very limited and was definitely meant to be so by the treaty partners. The Court discusses therefore the problems that are involved with the advisory jurisdiction in the human rights area, which the drafters of the European Convention had already discussed: "Special problems arise in the human rights area. Since it is the purpose of human rights treaties to guarantee the enjoyment of individual human beings of those rights and freedoms rather than to establish reciprocal relations between states, the fear has been expressed that the exercise of the Court's advisory jurisdiction might weaken its contentious 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 detriment  91 of the victim. That is, concern has been expressed that the Court's advisory jurisdiction might be invoked by States for the specific purpose of impairing the effectiveness of the proceedings in a case being dealt with by the Commission to avoid having to accept the contentious jurisdiction of the Court and the binding character of the Court's decisions, ..., thus interfering with the proper functioning of the Convention and adversely affecting the 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 for a advisory opinion'. This latter question was not asked for by the Government of Peru, but proved to be helpful for the 12th advisory opinion. Since it was the first time that the Court had been called upon the entire advisory opinion shows the intent not to block further contentious jurisdiction. Therefore, the objective approach of the Court and the clear denouncing of any dynamic method, must be seen under the particular circumstances, the noncooperation of Commission and Court and the lack of any contentious cases. Thus object and purpose of the treaty were emphasized, after the text was examined closely. The interpretation method can not be called entirely objective, since the subjective views of the treaty partners, especially through evaluating the drafting history, played a vital role for the Court. It can be classified at this early stage of the Court's jurisdiction, as an objective/subjective method.  c. Rules applied  243  3 HRLJ 145.  'In doing so, it followed an established pattern of the International Court of Justice [1950] I.C.J.-Rep. 65.  92 In identifying the authentic language the Court applied the Article 33 of the Vienna Convention. The Court stays very close to the Vienna Convention when it describes its interpretation 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 expression in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. " 245 The Court starts out with the textual meaning and concludes that the text does not entirely cover this question. Therefore it takes recourse to the traveaux preperatoire. This step is justified by a defining argument: "The Court's interpretation of Article 64, based on the ordinary meaning of its terms viewed in their context and taking into account the object and purpose of the treaty, is confirmed by the preparatory work of the Convention. It can be relied upon as a supplementary means of interpretation... ".246 The Court's use of rules of interpretation can therefore be described as being very conservative at that point in time.  2. No. 0C-2/82 - "entry into force and reservations" 247  a. History of the opinion  On June 28, 1982, the Inter-American Commission on Human Rights submitted the following question to the Court: "From what moment is a state deemed to have become party 245  Ibid. 3 HRLJ at 147.  246  3 HRLJ at 150.  247  3 HRLJ 153, 22 I.L.M. 37.  93 to the American Convention on Human Rights when it ratifies or adheres to the Convention with one or more reservations?" The Commission supplied two possible answers: "from the date of the deposit of instrument of ratification or adherence" or "upon the termination of the period specified 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 Convention which read as follows: Article 74 1. This Convention shall be open for signature and ratification by or adherence of any member state of the Organization of American States. 2. Ratification of or adherence to this Convention shall be made by the deposit of an instrument of ratification or adherence with the General Secretary of the Organization of American States. As soon as eleven states have deposited their instruments of ratification or adherence, the Convention shall enter into force. With respect to any state that ratifies or adheres thereafter, the Convention shall enter into force on the date of the deposit of its instrument of ratification or adherence. 3. The Secretary General shall inform all member states of the Organization of entry into force of the Convention, Article 75 This Convention shall be subject to reservations only in conformity with the provisions of 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 a state which ratifies or adheres to it, with or without a reservation, on the date of the deposit of its instrument of ratification or adherence.  b. Methods applied  The 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 reciprocal exchange of the rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of their nationality and all other contracting states" 249 .  The Court draws this conclusion from evaluating the judgements rendered under the European Convention." In its early stages the Court relied heavily on the European Court and Commission to support its decisions. It is remarkable that the Court did not follow the dynamic interpretation method, which the European Court already used at that time. The method remains objective, again closely evaluating the text and the drafting history.  c. Rules applied  The Court mentions as usual Articles 31 and 32, starting with the textual approach by looking at the language of the Article 74. It finds that the text is silent as to the particular question and therefore it takes recourse to its secondary means, the object and purpose of the treaty. It realizes that the Article 75 with its reference to the Vienna Convention does not solve the question but poses a number of new ones. First of all one has to determine what kind of treaty the Convention is, in order to find the applicable provisions of Article 75. The Court concludes 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 the  249 3  HRLI at 162.  'Austria v. Italy, Application No. 7881/60, 4 European Yearbook of Human Rights 116 at 140 (1960).  95 object and purpose of the treaty. The Court has recourse to the preparatory work of the Convention in order to back up its conclusion. Furthermore, the Court states that only sections 1 and 4 of Article 20 of the Vienna Convention can be relevant. Thus it also interprets the meaning of the Article 20 of the Vienna Convention and especially its relation to Article 75. The rules used do not differ from the previous observations regarding the first advisory opinion.  3. No. OC-3/83 "death penalty" 251  a. History of the opinion  The Inter-American Commission submitted on April 15, 1983 the following questions to the Court: 1. May a Government apply the death penalty for crimes for which the domestic legislation did not provide such punishment at the time the American Convention on Human Rights entered into force for said state? 2. May a Government on the basis of a reservation to Article 4 (4) of the Convention made at the time of ratification, adopt subsequent to the entry into force of the convention a law imposing the death penalty for crimes not subject to this action at the moment of ratification? The questions of the Commission concern Article 4 of the Convention. This reads as follows: Article 4 1. Every person has the right to have his life respected. This right shall be protected by law and, in general from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the  2514  HRLJ 339, 23 I.L.M. 320  96 most serious crimes and pursuant to a final judgement rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which 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 related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age, nor shall it be applied 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. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. The Court rendered the following opinion: the Convention imposes an absolute prohibition of the death penalty and that consequently the Government of a state party cannot apply the death penalty to crimes which such a penalty was not previously provided for under its domestic law (concerning question 1) and that a reservation restricted by its own wording to article 4 (4) of the Convention does not allow the Government of a state party to extend by subsequent legislation the application of the death penalty to crimes for which this penalty was not previously imposed.  b. Methods applied  The Court explicitly states that it is using the objective method of interpretation when it states : "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 more appropriate 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 'not  97 multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States', rather 'their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of their nationality and all other contracting States'. "252 This statement of the Court shows that beginning with its third opinion all remaining vestiges of a subjective approach are thrown overboard. This passage from the opinion has the • quality of definition.  c. Rules applied  The Court examines closely its own rules of interpretation, Article 29 and 30 of the Convention, when it is interpreting Article 4. However the Court does not reach any new results in applying rules of interpretation. The rules used are consistent from the first advisory opinion rendered to the most recent.  4. No. OC-4/84 "amendments to the naturalization provisions of the Political Constitution of Costa Rica"'  a. History of the opinion  This opinion is the first issued in response to a state that asked for the matching of its  252 4  HRLJ at 352.  253 5  HRLJ 161.  98 own legislation with the Convention. The Government of Costa Rica requested on June 28, 1983 an advisory opinion on the following question: the provisions of several amendments to the political constitution of Costa Rica were to be analyzed whether they are compatible with the Convention. The Articles concerned are Articles 14 and 15 of the Political Constitution of Costa Rica. Those could be inconsistent with the Articles 17, 20 and 24 of the Convention. The Court took recourse to the relevant judgements of international courts, which deal with this question 2m . In the advisory opinion of the Court some of the mentioned provisions were considered to be discriminatory.  b. Methods applied  The Court's approach is entirely objective. The Court tries to defend the results thus reached stating: "...the Court is mindful of the margin of appreciation which is reserved to states when it comes to the establishment of the requirements for the acquisition of nationality and the determination whether they have been complied with. But the Court's conclusion should not be viewed as approval of the practice which prevails in some areas to limit to an exaggerated and unjustified degree the political rights of naturalized individuals. 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. 255 5  HRLJ at 173.  99 method and not a dynamic approach, which might have altered the Convention to today's understanding of the Conventions provisions.  c. Rules applied  The Court once again was occupied with discussing the rule for interpretation which is part of the Convention, Article 29. Again no new results were discovered, which concern the application or the use of rules of interpretation. The extensive use of travaux preparatoires is noteworthy, 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 practice of journalism"'  a. History of the opinion  The Government of Costa Rica submitted the following question on July 8, 1985 to the Court: is compulsory membership of journalists and reporters in an association prescribed by law for the practice of journalism permitted or included among the restrictions or limitations authorized by Articles 13 and 29 of the Convention? The legislation concerned the interpretation of Article 13 of the Convention. The question arose whether this interpretation is inconsistent with Article 29 of the Convention.  256  7 HRLJ 74, 25 I.L.M. 123, 1985 Inter-American Yearbook of Human Rights at 1148.  100 The Court concluded that the law is incompatible with Article 13 when it restricts access to news or when it prevents certain persons from joining the Association and consequently barring them from collecting and expressing themselves or imparting information.  b. Methods applied  The 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- to compare the American Convention with the provisions of other international instruments in order to stress certain aspects concerning the manner in which a certain right has been formulated, but that approach should never be used to read into the Convention restrictions that are not grounded in the text. This is true even if these restrictions exist in another international treaty."' The method followed throughout was objective, thus the Court still let cautiousness prevail and again denounced explicitly the use of a dynamic approach. This must be understood in the light of the fact that at this point no contentious case had yet been tried in front of the Court and the Court was still quite uncertain about its position and its cooperation with the Commission.  c. Rules applied  The Court stayed close to the text, discussed again the Article 29 of the Convention and  257  7 HRLJ 82.  101 did not change the rules applied for the interpretation.  6. No. OC-6/86 "The word laws in Article 30' 8  a. History of the opinion  The 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 only to legal norms passed by the legislature (formal sense) or two, that "laws" may be understood in a material sense as a synonym for the entire body of law without regard to the procedure followed in creating such norms and the normative rank assigned to it within the hierarchical order 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 or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established. The Court took the standpoint that "laws" means a general norm tied to the general welfare passed by democratically elected legislative bodies established by the constitution and formulated according to the procedures set forth by the Constitutions of the state parties for that purpose.  258  7 HRLJ 231, 1986 Inter-American Yearbook on Human Rights at 346.  102 b. Methods applied  In stating that "the meaning of the word 'laws' in the context of a system for the protection of human rights cannot be disassociated form the nature and origin of that system.... "259, the Court determines the origin of human rights as being natural law. It is remarkable 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 intention of all American States, as expressed in the Preamble to the Convention to consolidate in the hemisphere within the framework of democratic institutions a system of personal liberty and social justice based on respect for the essential rights of man". 260 The Court leaves for the first time the objective interpretation method and begins interpreting in a dynamic method: "The concept of laws referred to in Article 30, interpreted in the context of the Convention and in the light of its object and purpose, cannot be examined solely in terms of the principle of legality...In the spirit of the Convention, this principle must be understood as one in which general legal norms must be created by the relevant organs pursuant to the procedures established in the constitutions of each State party and one to which all public authorities must strictly adhere." 261 Thus the method starts to change, when the Court interprets a human rights treaty.  c. Rules applied  259  7 HRLJ 234.  'Ibid. at 236. 261  Ibid. at 236.  103 The 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 the generally recognized rules of international law.  7. No. 0C-7/85 -"Enforceability of the right to reply or correction"'  a. History of the opinion  On October 1, 1985, the Government of Costa Rica submitted the following question to the 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 State of Costa Rica by virtue of the obligations assumed by our country under Article 1 of the Convention?" 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 the Convention to adopt legislative or other measures that may be necessary to give effect 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 14 1. Anyone injured by inaccurate or offensive statements or ideas 263 disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as  2627  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 this provision, which refer to "informaciones inexactas o agraviantes", "informcoes inexatas ou ofensivas" and to "donnees inexactes ou des imputations diffamatoires."  104 the law may establish. 2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred. 3. For the effective protection of honour and reputation, every publisher, and every newspaper, motion picture, radio, and television company, shall have a person responsible 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 correction which under Article 1 (1) the State parties have the obligation to respect and to ensure the free and 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 obligation under 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 under Article 2. However if a measure imposes any restriction on the right recognized by the Convention, it has to be adopted in the form of a law.  b. Methods applied  The Court was able to refer in this matter widely to its previous second advisory opinion and saw no need to change its then discovered results. The method used in this very short opinion is therefore genuinely objective. This result is not surprising. Since the opinion has a special nature, due to the fact that a previous opinion is being used to support the Court's arguments, it is logical that the interpretation method from the previous opinion is used, which was then genuinely objective. Therefore it was not to be expected that the Court would repeat its first steps towards a dynamic approach, as observed in the sixth opinion.  105 c. Rules applied  The Court uses the rules of the Vienna Convention, as it did in the second opinion. Since the Court repeats most of its arguments from this previous opinion, it was not to be expected that the Court would use new approaches.  8. No. OC-8/87 -"Habeas Corpus in emergency situations"'  a. History of the opinion  The 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 of Articles 27 (2) of the Convention may not be suspended by a state party to the aforementioned American Convention? The Court had to interpret Articles 25 (1) and 7 (6) when read in conjunction with the final clause of 27 (2). Again the question arose whether the restrictions regarding the interpretation of Article 29 are applicable or not. The Court rendered the following judgement: given the provisions of Article 27 (2) the legal remedies guaranteed in Articles 7(6) and 25 (1) of the Convention may not be suspended because they are judicial guarantees essential for the protection of the rights and freedoms whose suspension Article 27 (2) prohibits.  264  9 HRLJ 94, 27 I.L.M. 512, 1987 Inter-American Yearbook on Human Rights at 750.  106 b. Methods applied  In the beginning of the merits of this opinion the Court stayed very close to the text. In doing so, the Court tries to establish a protection for the rights of the individual, just by using this textual approach. The Court cites the Article 31 (1) of the Vienna Convention and concludes: "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 however pushed aside, when the Court starts to examine the real world scenario: "Those who drafted the Convention were aware of these realities (that is abduction of people), which may well explain why the Pact of San Jose is the first international human rights instrument to include among the rights that may not be suspended essential juridical guarantees for the protection of nondegorable rights".' This conclusion is remarkable, as the drafting history does not mention such considerations. The Court starts to make its judgements based on the evaluation of the real life situation, which cannot be classified as anything other than the dynamic approach.  c. Rules applied  The 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.  265  9 HRLJ at 97.  266  9 HRLJ at 102.  107 9. No. OC-9/87 -"Judicial guarantees in the state of emergency"'  a. History of the opinion  On September 17, 1986, the Government of Uruguay submitted to the Court the following question. The Court should interpret the scope of the Convention's prohibition of the suspension of the judicial guarantees which are essential in order to protect those rights. In particular 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 Article 27 (2) on one side and Articles 25 and 8 of the Convention on the other side. The Court was therefore 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 or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, 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 of such rights. 3. Any State Party availing itself of the right of suspension shall immediately inform the other 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 to the suspension, and the date for the termination of such suspension. Since the question touches a similar topic which was discussed in a previous opinion of the 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 the  HRLJ 204, 1988 Inter-American Yearbook on Human Rights at 892.  108 seventh opinion the Court relied on its second opinion. The Court began its consideration of what judicial guarantees are to be considered essential by evaluating the obligations of every State party. The Court just repeated its definition from the eighth opinion for the procedural institution tr, amparo 268. It also referred back to a judgement, the Velasquez Case, in order to point out that State has the obligation to provide effective judicial remedies. The Court had been explicitly asked to interpret what the title of Article 8 in the Spanish version means. The English translation for this title is "judicial guarantees". In the English version the term "right of a fair trial" had been used. The Court came to the conclusion that the Spanish title of the provision is 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 that should be observed "in order to be able to speak of effective and appropriate judicial guarantees under the Convention". The Court rendered the following judgement: the essential judicial guarantees which are not subject to derogation according to Article 27 are habeas corpus, amparo, and other effective remedies before judges or competent tribunals which are designed to guarantee rights and freedoms whose suspension is not authorized by the Convention. The Court classified those "judicial guarantees" as being "essential" and not being subject to suspension as judicial procedures which are inherent to representative democracy as a form of Government. They have to be provided for in the laws of the state parties and they have to be suitable for guaranteeing  2681n  Spanish-American law s constitutional remedy to guarantee the inviolability of the rights and guaranties set forth in the Constitution. Originally a document issued to a claimant of land as a protection to him, until a survey can be ordered and the title of possession issued by an authorized commissioner. Black's Law Dictionary, supra note 101 at 84.  109 the full exercise of the rights referred to in Article 27 (2) of the Convention. Further, it stated that the above mentioned judicial guarantees should be exercised within the framework and the principles of the due process of law expressed in Article 8 of the Convention.  b. Methods applied  The Court used one interesting new feature in this opinion. It does not really answer the question it was asked by Uruguay, but rather rearranges the question the way it would like to answer it. Otherwise this opinion is comparable to the seventh opinion, where no new approaches to interpretation could be taken, as the connection to a previous opinion was so close.  c. Rules applied  The rules used can be reduced to two. Next to the technical rule about the authentic language the object and purpose rule prevails throughout the entire decision. As the opinion is very 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 Man within 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.  110 a. History of the opinion  The Government of the Republic of Columbia requested on February 17, 1988 an advisory opinion on the following question. "Does Article 64 authorize the Inter-American Court of Human Rights to render advisory opinions at the request of a member state or of one of the organs of the OAS regarding interpretation of the American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of the American States in Bogota in 1948?" The Government added some interpretation of this question of its own. It argued that it does not see the American Declaration as a treaty. Therefore the Government wanted to know the judicial status of the Declaration and whether the Court has jurisdiction to interpret the Declaration. The Court received observations of several Governments on this matter. Most of the governments argued that the Declaration did not constitute a treaty. The Court examined the legal definitions given in the two Vienna Conventions from 1969 and 1986, Article 2 in both instances, and concluded that the Declaration cannot be regarded as a treaty according to those two instruments. It then examined the drafting history of the Declaration and found that at the time it was adopted it was understood that the Declaration should not be a treaty. However, the Court stated that the fact that the Declaration is not a treaty does not imply that the Court does not have the power to interpret it. It argues that the Declaration is mentioned twice in the Convention, in the Preamble and in Article 29. The Court cites the International Court of Justice: "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the  111 interpretation."' It added that it could only interpret the OAS-Charter when it could interpret the Declaration as well. Therefore the Court ruled that it can interpret the Declaration.  b. Methods applied  This opinion is remarkable in that the Court finally only applies the dynamic interpretation 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 evolving American 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 especially in human rights law, which distinguished that law from classical international law to a significant extent."" The Court justifies this result by referring to the will of the treaty partners themselves and creates the new term of "authoritative " interpretation: "Hence it may be said by the means of an authoritative interpretation, the member states of the Organization have signalled their agreement that the Declaration contains and defines 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. ' 11 HRLJ at 124.  2 1  272Thid  .  "Ibid. at 126.  112 c. Rules applied  The Court followed its canon of looking at the text, the travaux preparatoires, and the systematic 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 opinion  The 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 legal remedies within a country?" In case that this requirement would be waived by the Court, the Commission wanted to know, what kind of criteria it should consider when it determines the admissibility of such a case. 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 an individual complainant, who because he is unable to retain representation due to a general fear in the legal community cannot avail himself of the legal remedies provided by law in a country?"  ' 12 HMI 20, 1988 Inter-American Yearbook on Human Rights at 886.  2 4  113 Again, in the case that this requirement would be waived the Commission demanded to know the criteria it should apply for the admission of such a case. The Commission argued here that 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 their families in jeopardy. "" The questions submitted called for an interpretation of Article 46: 1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. 2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when: a. the domestic legislation of the state concerned does not afford due process of law for the 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 remedies under domestic law or has been prevented from exhausting them;... The Court ruled that according to the text the exemption form exhausting the domestic remedies can only be found in Article 46 (2). However in order to understand this Article it has to be read in conjunction with Article 1 (1), 8 and 24. Therefore indigence alone does not result in an automatic waiver of the exhaustion of domestic remedies. The second question is answered by taking into account the same criteria. The remedies a state has to supply must be "suitable to address an infringement of a legal right" and "capable of producing the result for which [they were] designed.X 2'6 Concerning the question which was added on to both questions, as to which criteria the  275 12 276  HRLJ at 21.  The Court cites here its own decision in the Velasquez Rodriguez Case, 9 HRLJ 222.  114 Commission should apply, the Court leaves it open to the Commission to make its own determination. However the Court warns the Commission that it has full power to review any such decision. Further, the Court shifts the burden of proof. The plaintiff does not have to prove why he was unable to exhaust local remedies; instead, the State has to prove that the domestic remedies in fact existed and that they were not exhausted. Once the State party has shown the existence of such remedies, the burden of proof again shifts to the complainant, who must then demonstrate the exceptions provided for in Article 46 (2) are applicable.  b. Methods applied  The Court followed its flexible dynamic approach in this opinion. The text is the basis for the interpretation, however taking into account the object and purpose of the treaty prevails over a strict literal interpretation. The already well known form of the shifting of the burden of proof away from the individual towards the government was discussed in the Fairen Garbi Case'. Special emphasis was given in this opinion to systematic interpretation, as Article 46 was read in conjunction with a number of other Articles. In general the dynamic approach appears to be an established pattern.  c. Rules applied  The Court used again its established canon of interpretation rules in using the rules  'See above Chapter Four, I, A, 3.  115 supplied 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 Article 8(2) (h) of the Convention"'  a. History of the opinion  The Government of Costa Rica submitted a request for an advisory opinion to the Court on February 22, 1991. The question concerned draft legislation, which was intended to amend and alter the Code of Criminal Procedure. The Government demanded to know whether the establishment of a Court of Criminal Appeals and several other proposed amendments to the Code would fulfil the requirement set out in Article 8 (2) (h) of the Convention dealing with the right to appeal. Furthermore, the Court 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 rule should be applied to lesser violations of criminal law ("contravenios"). The Article in question reads as follows: Article 8 Right to a Fair Trial •••  2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to the law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: h. the right to appeal the judgement to a higher court. ' 13 HRLJ 149.  2 8  116 The Court received observations from several governments. Among those was the observation of the Government of. In this observation the Government of Uruguay recommended to the Court not render an advisory opinion at all. It relied with its arguments on the sixth advisory 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 and promulgated by the executive branch qualify as proper subjects of an advisory opinion."' The Government of Costa Rica replied to this observation that in Article 30 a different kind of law is meant than in Article 64. The Commission supplied the Court with nine cases, where individuals claimed that they were deprived from the right of appeal to a higher Court in Costa Rica. The Court pointed out, citing its first advisory opinion, that it does not have to render an opinion. It added that the word "law" has a different meaning in Article 64 and Article 30. It invoked its fourth opinion ("proposed amendments"), where it held draft legislation admissible. This conclusion is logical. Otherwise the Government would be forced to violate the Convention by the formal adoption and possibly even application of the legislative measure, which would then be deemed to permit the appeal to the Court. The Court refused to render an advisory opinion as it was clear that any decision would limit its contentious jurisdiction. The questions submitted by Costa Rica in the guise of request for an advisory opinion would in reality be a determination of contentious matter not yet referred to the Court, in the form of the nine cases before the Commission.  b. Methods applied 279Thid.  117 The Court was forced to take recourse to the objective method, as the Court was forced to rely on previous opinions to refuse to render an opinion. It therefore closely examined the text of the treaty and refused to accept the intentions of the treaty partners as arguments. It therefore denounced the use of the subjective method.  c. Rules applied  The Court exclusively stated in evaluating the different nature of the term "law" in Article 30 and 64 that "...the ordinary meaning of terms [of a treaty] cannot of itself become the sole rule, for it must always be considered within its context and, in particular, in the light of the object and purpose of the treaty."' The Court thus applied the rules in the Vienna Convention in its appropriate way. Whenever the result achieved is in contradiction to logic secondary means of interpretation have to be considered. The Court was not to be expected to use new rules of interpretation, as again the Court relied heavily in its argumentation on a previous advisory opinion. Therefore the rules used in this previous opinion were used once again.  II. By the Inter-American Commission on Human Rights  A. Decisions prior to the adoption of the Vienna Convention on the Law of Treaties, May 23, 1969 280thid.  118 1. Communications: Repatriated Haitian citizens and the Beauvoir-Florez Case'  a. History of the communications  In May 1966 several groups of Haitians, a total number of 103 persons, entered the Dominican Republic without complying with the legal provisions of immigration. After living there 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 site investigation 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 as supranational jurisdiction and arrogate to itself the power to control, amend, or condemn the decisions and the orders of national jurisdiction." 282 Mr. Emanuel Beauvoir and Marie Therese Beauvoir were sentenced to death for the crimes 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 for information in this matter, the Haitian Government pardoned both individuals.  b. Methods applied  281 0ASOR, 0EA/Ser.L/II.16, Doc. 2 Rev., (1967) and L. Sohn & T. Buergenthal International Protection of Human Rights (Indianapolis: Bobbs-Merrill, 1973) at 1307-1313. 282  Sohn/Buergenthal, supra note 281 at 1310.  119 The cases are typical of the time period before the amendment' to the OAS-Charter and the adoption of the Convention. The Commission had to explore and stabilize its own powers through interpretation. The Commission did not deal with the interpretation of normative questions as to the meaning of a certain substantive provisions. Instead, they were occupied with interpreting procedural questions, such as whether there is a right for on site investigation or whether 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 out and cites provisions of the OAS-Charter and of its own rules of procedure, which were adopted by the OAS-Council of Ministers. In doing so the aim of the Commission is to pressure Haiti into complying with the principle "pacta sunt servanda", which is most easily achieved through the objective method. The way Haiti understood its own reservation could not be accepted as an excuse, as the plain meaning of the text prevails over the subjective intentions of the treaty partner, when a reservation is being interpreted.  c. Rules applied  The main rule applied is the ordinary meaning rule. Materials beyond the plain text of the Charter and the rules of procedure are not considered. This rule, later to become Article 31 of 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 to the 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.  120 it 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 the powers of the Commission and the obligations of Haiti under the Charter, Haiti pardoned and released the obviously illegitimately convicted family.  2. Country reports: Haiti 1963 2 "  a. History of the report  During its first eight sessions, beginning in 1961, the Commission received numerous communications or complaints regarding serious violations of human rights by the Haitian Government. The Commission corresponded with Haiti on this matter over the following two years. In its initial responses Haiti supplied some information on the cases mentioned; later it summarily answered that every accusation was false and unfounded. During its fifth session the Commission 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 that the Commission did not have the power to enforce this decision when a government denied its consent. 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 at 1293-1306.  121 after the sixth session in 1963 to gain the consent of Haiti for an on site investigation was turned down with the same arguments, adding the concern regarding an international press conspiracy against Haiti. The Commission finally informed the Council of the Organization of American States by filing a country report. The country report detailed the violations of the Haitian Government and pointed out the state of human rights in that country.  b. Methods applied  In addition to the interpretation of procedural questions, here the right to conduct an on site investigation, which was handled with the same objective approach as above in the communications, the report itself contains an interpretation of the meaning of the substantive parts of the American Declaration. The method used here is again a pure objective approach in pointing out the plain meaning of the text, and in matching the violations done by Haiti with the individual terms in the Declaration.  c. Rules applied  The rules used in the interpretation of the terms of the Declaration in the report can be reduced to one rule, the ordinary meaning rule, which was used also in the communications and was discussed above.  B. Decisions in between the adoption of the Vienna Convention 23.5.1969 and the first  122 judgement of the Court 22.7.1981  1. History of the "baby boy" case"  The United States Supreme Court limited the full regulatory power of the state to prohibit abortion to the last trimester of pregnancy.' Several years after this decision Dr. Kenneth Edelin was convicted of manslaughter for performing a late term abortion. This conviction was overturned by the Massachusetts Supreme Judicial Court on grounds of insufficient evidence of the viability of the fetus or of life outside the womb, findings necessary to go to a jury on the issue of guilt beyond a reasonable doubt of wanton or reckless conduct resulting in death. One month 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 by the 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). These violations were alleged to have begun with the Wade and Bolton cases which lay the foundation for the fact that the State of Massachusetts through its Court prevented Dr. Edelin from being punished for his acts. The United States failed to respond to the request of the Commission for information within 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).  123 all raised the question of non exhaustion of domestic remedies via an appeal to the Supreme Court. Secondly the United States pointed out that according to the preparatory work it was understood during the time of the drafting of the Declaration that the right of life was not to be extended to the unborn. In addition the American Convention, to which the United States is not party, uses different language in order to include the right to life from the moment of conception. Furthermore the United States argued that even during the drafting of the American Convention it was understood that the states should retain the right to allow abortion in a variety of cases. Four Members of Congress of the United States requested an advisory opinion in this matter. This request was rejected as the Members of the U.S.Congress are not among the persons or organs mentioned in Article 112 of the OAS-Charter. Concerning the exhaustion of legal remedies it was easy for the Commission to rule that the local remedies had been exhausted. State court decisions are subject to appeal by either an appeal or by writ of certiorari. Both are limited to specific situations, none of which were applicable in this case. The delay of the answer of the United States Government was considered to be justified due to the legal, moral and scientific issues disputed in this case. The Inter-American Commission concluded that the decisions of the U.S. Supreme Court and of the Supreme Judicial Court of the State of Massachusetts and the actions of Dr. Edelin did not constitute a violation of the American Declaration of Rights and Duties of Man.  2. Methods applied  124 Even though this decision was being rendered very shortly before the first judgement of the Court, it appears to be the best example of the interpretation methods and rules used during the period covering the time between the adoption of the Convention and the first judgement of the Court. First of all, it includes the problem that the American Convention, at the time the petition was filed, was not yet in force. The Commission had thus to address the problem of interpretation of similar provisions in two different documents, in this case, the Convention and the Declaration. Secondly it causes the problem that the state concerned, here the U.S., did not adhere to the Convention, but did recognize the jurisdiction of the Commission under the Declaration. Beginning with a procedural question, the Commission considered its own rule concerning the six month reply period to be flexible, as the United States did not reply to the requested information in time. This approach may be considered unique in international law, as in any national legal system deadlines are used extensively as weapons to influence the outcome of judicial decisions. In the case concerned, the presumption of the truth of the facts described by the petitioner could not be used as a penalty against the United States, since the facts were not in controversy. The petition was directed towards the interpretation of legal issues. Concerning the substantive part of the petition, the Commission begins with an objective approach, exploring the text of the Declaration. After realizing that the text does not answer the question at issue, the Commission takes recourse to the travaux preparatoire and tries to determine the understanding and intention of the treaty partners at the time the treaty was concluded. Thus the second approach of the Commission is a subjective one. The discovered result is that the preparatory work, most of it only in an official Spanish version, is very  125 contradictory; the Commission comes to the conclusion "that the conference faced the question but chose not to adopt language which could clearly have stated that principle [protection from the moment of conception]" . 287 The final approach is in looking in a dynamic manner at the Declaration. This is done by arguing that the Convention might be used as an element for the interpretation of the Declaration. 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 the interpretation of a treaty was classified above as dynamic interpretation. The Commission interpreted the provisions in the Convention with the help of its preparatory work and came to the conclusion, that "the Convention was not intended to modify the concept of the right of life that prevailed in the Declaration". 2 " Furthermore it denounced the possibility of an implication of the Convention as a mean of interpretation for the Declaration, therefore denouncing the dynamic 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 applied  Without naming Articles 31 and 32 of the Vienna Convention on the Law of Treaties,  287  2 HRLJ at 119.  288thid  126 both 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 the evaluation of the plain meaning of the text. When the Commission reached the conclusion that the question could not be answered by merely evaluating the text, it took, according to Article 32, recourse to the travaux preparatoires. However the Commission had to realize that the traveaux preperatoire was ambiguous too. While examining the text, the Commission inflicted the rule in Article 33 as they decided that the Spanish version of most of the preparatory work was 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 22.7.1981  1. As organ of the convention  a. Relationship between the Commission and the Court  After the Court was constituted in. 1979, the relationship between the Court and the Commission can be best described as noncooperative. When Costa Rica brought its first contentious case to the Court, Viviana Gallardo, the Court had to refer the case to the Commission, as shown above. However the Court kept the case on its list, until the Commission rendered 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 Commission  127 finally addressed the Court in order to receive an advisory opinion. However, the real purpose of the Commission was to find a way to compel Guatemala to suspend the death sentences handed down by special courts that were created outside the regular judicial apparatus and operated without due process of law. Those sentences were imposed for offenses which were previously not punishable by death. Guatemala had made some reservations to the Convention regarding this matter and had not adhered to the contentious jurisdiction of the Court. Therefore there was no chance that this case would reach the stage of the Court. The Court finally rendered its third advisory opinion'. The third stage can be called cooperation. In 1986 the Commission finally submitted a series of three cases to the Court'. The majority of those cases involved the disappearance of people in Honduras, where the human rights situation was extremely serious. The disappearance of people was not mentioned in the Convention and the Commission was stuck with gathering evidence. The main problem for the Court was that the Commission did not comply with its own rules of procedure when submitting the case. The Commission interpreted the Convention to the effect that the Court was not an appellate tribunal and therefore had limited jurisdiction. This would prevent the Court from reviewing certain procedural aspects of the case, including all those that were raised by Honduras. The Court did not follow this interpretation and argued that it was competent to decide all matters which relate to the interpretation and application of the Convention. This includes all procedural matters.  'See above Chapter Four, I, B, 3. velasquez Rodriguez, Fairen Garbi and Godinez Cruz, see above Chapter Four, I, A, 1  290  to 3.  128  b. Methods applied  The methods applied in all six cases which so far have been submitted to the Court by the Commission are identical to the ones of the Court.  c. Rules applied  The rules used by the Commission in these six cases are not different from the ones used by the Court.  2. As organ of the OAS  a. History of the Stephen Schmidt case291  Stephen Schmidt, a U.S. citizen, after having resided in Costa Rica for ten years, duly authorized by the public authorities of that country, was working for a weekly English publication. In April 1980 his case was brought to the attention of the Costa Rican Prosecuting Office by the "Colegio de Periodistas" that Mr. Schmidt was a presumed perpetrator of the crime of illegal exercise of a profession. According to Articles 22, 23, 24, 25 and 27 of the Basic Law of the "Colegio de Periodistas" in conjunction with Article 313 of the criminal code  291  Case 9178 (Costa Rica) (1984), Inter-Am. Comm. H.R. Res. 17/84, (1985) 6 HRLJ 211.  129 of Costa Rica, the exercise of journalism is limited to individuals who are members of the Association "Colegio de Periodistas", after they are granted a license. Stephen Schmidt exhausted the appeals of the domestic law of Costa Rica. On June 3, 1983 he was sentenced to three month imprisonment and his sentence was ordered to be registered in the judicial register of delinquents. Therefore he was never again eligible to be enroled into the "Colegio de Periodistas", as he now had a criminal record. The Government of Costa Rica pointed out that freedom of speech was not restricted through the Basic Law of the "Colegio de Periodistas" and therefore it was in conformity with the American Convention, as it did not prevent Mr. Schmidt from writing columns, it just prevented him from acting as the editor in chief, for which he had to be a member of the association. Furthermore the Government expressed the point of view that the petition had to be considered 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. Schmidt leaving Costa Rica was the fact that he could not exercise his profession of journalism there, as he could not become a member of the professional association. It furthermore concluded that the law establishing the "Colegio de Periodistas" as well as the decision by which Mr. Schmidt was sentenced to three month imprisonment did not constitute a violation of Article 13 of the American Convention. The decision led to an advisory opinion of the Court requested by the Government 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 the Practice 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.  130 b. Methods applied  The question the Commission had to answer this case was whether the compulsory membership in the association constituted a violation of the principle of freedom of thought. The Commission held that such an obligatory membership does not constitute a breach of Article 13 of the Convention. In order to reach this result, the Commission used an objective method in exploring the text and its implications. Thus the methods of the Commission when operating as an organ of the OAS are not different from the ones used as an organ of the Convention. This is not surprising as the same people are operating under both settings and one of the features of the Commission is consistency.  c. Rules applied  The Commission used, without mentioning it, the ordinary meaning rule of Article 31 of the Vienna Convention. In referring to the implied meaning of the Article 13, small steps towards the object and purpose rule were taken. In general there are no differences between the rules of interpretation used by the Commission today and by the Court, even when the Commission is working as the Organ of the OAS and not as organ of the Convention.  131 CHAPTER FIVE: Conclusion  The question of interpretation is central to the functioning of any judicial institution. All such institutions develop their preferred mode or technique of interpretation. At the time of writing this thesis, the Inter-American Court has developed the greater part of its jurisprudence through the medium of advisory opinions rather than through the exercise of its contentious jurisdiction. The number of advisory opinions to date is twelve, the number of cases with final decisions 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 variety of factors. They may be broken down into three categories: first, the problems which are inherent in developing the international protection of human rights within the international legal system; 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 of all in the fact that states guard their national sovereignty. The only limits imposed upon a state's competence in the ordering of their internal affairs are through norms of international law. Through international legal norms, certain matters are transferred from domestic to international jurisdiction. Other states now may legitimately demand compliance by a state in breach, whereas otherwise other states are excluded from intervening within the field of state competence. This problem becomes clearly evident in the low number of ratification of the Inter-American  AS of December 11, 1991: cases closed are Viviana Gallardo, Velasquez Rodriguez, Godinez Cruz and Fairen Garbi/Solis Corrales. Cases pending are Aloeboetoe, GangaramPanday, Neira Alegria and Bustios and Rojas. See also Appendix 1. 293  132 Convention, 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 to international adjudication'. One of the most significant state concerns is the fact that international adjudication may not be predictable. The predictability of international adjudication would increase, however, if methods of interpretation and their rules were to be evident to the states concerned and followed by the respective adjudicative bodies. The Vienna Convention on the Law of Treaties and the huge number of textbooks, treatises and articles written on this issue, including this thesis, are intended to overcome this state concern. At least some patterns in international adjudication are distinguishable. Secondly, the political and social conditions in the Americas influence the use of the Court to a large extent. In contrast to Europe, where until the admission of the former socialist countries the political homogeneity and the social organization within the member states of the Council of Europe provided a relatively stable basis for the protection of human rights, the Americas lack these features. In the past the political landscape in the Americas has ranged from liberal democracy to totalitarian dictatorship. The obsession with a military culture in a large number of Latin American states, with its emphasis on conformity and obedience, contributed  For many years, the International Court of Justice has experienced the same problem. The United States withdrew from proceedings initiated by Nicaragua before the International Court of Justice on January 18, 1985 by the help of suspension of their submission to the jurisdiction of the Court. 24 I.L.M. 246 (1985). This power, to withdraw jurisdiction, resides in the United States 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 Suffok Transnational Law Journal 325-335. 294  133 in some of the worst human rights abuses of modern times." The lack of trust between American states themselves and in addition the lack of trust between the regimes and their own people has not encouraged the evolution of appropriate human rights protection mechanisms. Lawyers' who have tried to bring forward cases' and witnesses' of such human rights abuses have become objects of persecution themselves. This obviously discourages others from even bringing their complaint in front of the court. Poverty, lack of education and lack of access to legal advice services within most of the OAS member states make it unlikely that individuals whose rights have been violated will resort to the Commission, and ultimately to the Court, for their protection or even for redress. Little can be done in the short term to address these concerns. The Court could through promotion make its existence more known among the people of the Americas. One judge of the Inter-American Court, Thomas Buergenthal, has suggested 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 of this cruelty about a discovered mass grave of several hundred battered skeletons, killed in the town of El Mozote in 1981 by soldiers from the Salvadoran army's U.S.-trained Atlacatl Battalion. 'The Court discusses in one of its advisory opinions the question of not exhaustion of domestic 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. 298  Twice in 1988 the Court issued preliminary measures to safeguard the witnesses of the Velasquez 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 Armed forces were made to murder the relatives of a victim and an other surviving victim and witnesses of the incidence, (1990) 11 HRLJ 257.  134 instead of being a "creature of the Convention"'. Thirdly, the small number of contentious judgements of the Court to date is due to the structure of the Convention. The obligatory nature of the Commission's procedure gives the Commission considerable power in determining the admissibility of a case. As shown through the judgement in the Viviana Gallardo case, an individual, a nongovernmental entity or a state can not directly address the Court. The procedures described in Articles 48-50 have to be fulfilled, which means the preliminary actions before the Commission. These have tended to be very lengthy. This has not been entirely the fault of the Commission; it reflects another substantive problem with the Convention, namely the lack of rules on evidence-gathering. Unfortunately, the Commission depends to a large extent on the cooperation of the states concerned. These states have tended not to answer at all, or if they have responded, they just have denied the event. Lack of funding has prevented the more frequent use of on-site investigations. The Court's funding for an entire fiscal year was spent on the Velasquez case alone300 . This raises the question of whether it makes sense to pursue one case so thoroughly while many others get delayed. The Court has left open the question of whether the preliminary action can be circumvented in an inter-state case under Article 45. However, this is very unlikely to happen and if it does, the arguments for denying such a circumvention, especially the lack of the option of a friendly settlement and the object and the purpose of the preliminary measures, would not  299T, 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 and Prospects" (1988) 63 Washington Law Review 1-19.  135 be any different. Therefore a similar judgement, that those rights cannot be waived, is the likely outcome. The Court's jurisprudence is distinctive in certain areas, most particularly in its identification of the philosophical bases of human rights obligations and ideological issues concerning the relationship of human rights to the concept of the rule of law and to democratic ideals. That is, the Court has not examined human rights in the abstract, but linked them to certain 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 therefore been not static but dynamic in all of its judgements. One of its main purposes has been to proclaim the existence of a basic set of rules a state should follow. Among those are representative democracy, a pluralistic society, the rule of law and the principle of legality. This identification of a link between human rights and representative democracy is not only the Court's own creation. The major Inter-American Human rights instruments already provide for those assumptions, the OAS-Charter in Article 3, the American Declaration of Rights and Duties of 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 significant contribution, twelve opinions to date, but also an substantive effort to "lift the level of human rights observance in the geographical area it serves."' Advisory opinions have the practical value that they are much easier for governments to comply with them. Governments are not accused of violating a provision of the Convention and the opinion has a non-binding character.  301  S. Davidson, supra note 188 at 184.  302  A. Mower, Regional Human Rights, (New York: Greenwood Press, 1991), at 126.  136 Thus, if the government complies, it appears as if it does so voluntarily, not "under coercion from an external source" .303 In nearly all its judgements the Court has made it clear that its approach to interpretation of the Convention is based upon the rules contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969. These may be deemed to be the appropriate rules of international law governing the interpretation of treaties'''. Here the Court is undoubtedly correct. The Vienna Convention is a mixture of codification and progressive development, as shown above; however, its preamble emphasizes that the provisions concerning treaty interpretation are a clear statement of customary international law.' The Court's interpretation methods have evolved over the years. Starting with a cautious mixture of the subjective and objective methods, the Court has developed its interpretation method into a dynamic approach, whereby the meaning of the text is adapted to present-day conditions. This is necessary for the interpretation of human rights treaties in order to fulfil their original goal, the protection of the individual. The rules applied by the Court follow this pattern, but can be classified as being more conservative. The Court stays to the codified rules of the Vienna Convention and seldom leaves this secure path. Overall, the Court is influenced by the specific nature of the cultural background and the special environment of the Americas, when choosing methods and rules of interpretation. Part  ° 1bid.  3 3  304  Viviana Gallardo Case. (1981) 2 HRLJ 328, 20 I.L.M. 1424.  3°5  Sir I. Sinclair, supra note 15 at 10-21.  137 of this environment are the economic conditions. Latin America struggles with a deteriorating economy and there is a connection between the economical situation and the kinds of human rights violations in the respective countries. If domestic unrest, arising from a deteriorating economic situation, becomes too great, the controlling regime is vulnerable to the temptation to adopt repressive measures to stay in power. In addition it is a general understanding that there is a positive correlation between the existence of democracy in a given country and the respect for 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 threat to overthrow his regime, these power-holders feel tempted to protect their position by oppressive tactics, 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 to establish the disappearance of individuals as a violation of the Convention through choosing a dynamic interpretation. Secondly the Court had to take the above mentioned considerations into account, when interpreting judicial guarantees like "amparo" or "habeas corpus". The Commission is more aggressive in its interpretation methods and quite often leaves formal requirements aside. This is due to its attempt to improve the human rights situation in an entire country, sometimes forgetting that its original task is to ensure the human rights of an individual. The Commission just experienced a new challenge as Uruguay attempted to circumvent its obligation under the Convention to prosecute the persons responsible for human rights violations by granting them pardon. The Commission has ruled such steps to be inconsistent with  138 the 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 reaches a different conclusion than the Court. However, Court and Commission ensure the protection of human rights laid out in the Convention. They do this according to the limitations they face through their legal basis, their financial restraints and the lack of cooperation of the countries concerned. Their contribution to the evolving interpretation methods and rules when supranational institutions interpret human rights instruments is of great value. Their decisions can be found in the citation of many such bodies. Summing up, the interpretation of human rights treaties is today done by a different form of method than ordinary international treaties. This is due to the special nature of human rights treaties, where the individual, who is to be protected through the treaty is not a treaty partner and the states do not exchange reciprocal benefits, but open up their sovereignty to foreign supervision. The rules for the interpretation do not differ greatly from the great variety of interpretation rules, but can be classified as being more reliant upon codification than in ordinary international treaty interpretation. 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"The Inter-American Commission on Human Rights and the death penalty". 34 Federal Bar News and Journal 398-402 (1987).  146 APPENDIX 1 Table 1: Progress of cases in front of the Inter-American Court of Human Rights Short title of cases Action taken by Court  Viviana Gallarado  Velasquez Rodriguez  Fairen GarbiSolis Corrales  Godinez Cruz  Order (Preliminary measures)  I. 15.1.1988 9 HRLJ 104 88 Year 1006 II. 19.1.1988 9 HRLJ 105 88 Year 1010  Preliminary objections  26.6.1987 87 Year 772  26.6.1987 87 Year 814  26.6.1987 87 Year 858  Judgement  29.7.1988 9 HRLJ 212 28 ILM 291 88 Year 914  15.3.1989 Series A, 1989  20.1.1989 Series A, 1989  Judgement (assessment of damages)  21.7.1989 11 HRLJ 127  Interpretation of judgement  17.8.1990 12 HRLJ 14  Interlocutory judgement  22.7.1981 2 HRLJ 108  Resolution  13.11.1981 2 HRLJ 328 20 ILM 1424  Order (decision closing the case)  9.8.1984 5 HRLJ 77  147 Table 2: (continued) Progress of cases in front of the Inter-American Court of Human Rights Short title of cases Action taken by Court  Bustios-Rojas  Order (Preliminary measures)  8.8.1990 11 HRLJ 257  Aloeboetoe  Resolution Order (decision closing the case) Judgement Judgement (assessment of damages) Interpretation of judgement  Neira Alegria 29.6.1992 13 HRLJ 407  Preliminary objections Interlocutory judgement  GangaramPanday  4.12.1991 13 HRLJ 142 4.12.1991 13 HRLJ 140  11.12.1991 13 HRLJ 146  148 Table 3: Status of the American Convention on Human Rights, as of January 1st, 1990. Country  Convention (ratification or accession)  Commission (recognition of competence)  Court (recognition of competence)  Argentina  5. 9. 1984  14.8.1984  14.8.1984  Barbados  27.11.1982  Bolivia  19.7.1979  Chile  signed: 20.6.1978  Colombia  31.7. 1973  21.6.1985  21.6.1985  Costa Rica  8.4.1970  2.7.1980  2.7.1980  Dominican Republic  19.4.1978  Ecuador  28.12.1977  24.7.1984  24.7.1984  El Salvador  23.6.1978  Grenada  18.7.1978  Guatemala  25.5.1978  Haiti  27.9.1977  Honduras  8.9.1977  Jamaica  7.8.1977  Mexico  3.4.1982  Nicaragua  25.9.1979  Panama  22.6.1978  Paraguay  signed: 16.9.1977  Peru  28.7.1978  Suriname  12.11.1987  United States  signed: 1.6.1977  Uruguay  19.4.1985  26.3.1985  26.3.1985  Venezuela  9.8.1977  9.8.1977  9.8.1977  20.2.1987  9.9.1981 19.7.1978  21.1.1981  21.1.1981 12.11.1987  149 Table 4: Status of the European Convention on Human Rights and Fundamental Freedoms, as of 1 January 1993 Country  Council (Membership since)  Convention (Ratification)  Commission (Individual petition)  Court (competence recognition)  Austria  4.1956  3.9.1958  3.9.1958  3.9.1958  Belgium  5.5.1949  14.6.1955  5.8.1955  5.7.1955  Bulgaria  7.5.1992  7.9.1992  7.9.1992  7.9.1992  CSFR  21.2.1991  18.3.1992  18.3.1992  18.3.1992  Cyprus  4.1961  6.10.1962  n/a  24.1.1980  Denmark  5.5.1949  13.4.1953  13.4.1953  13.4.1953  Finland  5.5.1989  n/a  n/a  n/a  France  5.5.1949  3.5.1974  2.10.1981  3.5.1974  Germany  5.1951  5.12.1952  5.7.1955  5.7.1955  Greece307  8.1949  28.11.1974  20.11.1985  30.1.1979  Hungary  6.11.1990  5.11.1992  5.11.1992  5.11.1992  Iceland  3.1950  29.6.1953  29.3.1955  3.9.1958  Ireland  5.5.1949  25.2.1953  25.2.1953  25.2.1953  Italy 308  5.5.1949  26.10.1955  1.8.1973  1.8.1973  Liechtenstein  11.1978  8.9.1982  8.9.1982  8.9.1982  Luxembourg  n/a  3.9.1953  28.4.1958  28.4.1958  Malta  1.1965  23.1.1967  n/a  n/a  Netherlands  n/a  31.8.1954  28.6.1960  31.8.1954  Norway  n/a  15.1.1952  10.12.1955  30.6.1964  Poland  26.11.1991  not yet  not yet  not yet  Portugal  9.1976  9.11.1978  9.9.1978  9.11.1978  'Withdrawn from 12.1969-11.1974. 'Includes San Marino.  150 Spain  11.1977  4.10.1979  1.7.1981  15.10.1979  Sweden  n/a  4.2.1952  4.2.1952  13.5.1966  Switzerland  5.1963  28.11.1974  28.11.1974  28.11.1974  Turkey  8.1949  18.5.1954  n/a  n/a  14.1.1966  14.1.1966  5.5.1949 8.3.1951 U.K. n a= not available not yet= so tar no ratification  151 APPENDIX 2 Figure 1: OAS Procedure of the Inter-American Commission on Human Rights Individual complaint  Group of persons  Legally recognized entity  Preliminary requirements 1. prior exhaustion of domestic remedies 2. subject of petition or communication is not pending in another international settlement proceeding Decision of admissibility Evidence gathering (Commission communicates with governments) -witnesses -documents -records -official publications -on site observations Friendly settlement  Decision: Conclusion with suggestions and recommendations Transmission to the state in question and petitioner Enforcement: (state fails to adopt measures recommended) Commission may publish case in annual report to the OAS General Assembly or take any other measure that it considers appropriate, i.e. publishing a country report  152 Figure 2: Procedure of Advisory Jurisdiction before the Inter-American Court of Human Rights OAS member state on Interpretation of Convention or on Interpretation of any other treaty concerning the protection of human rights in the American States  Organ of OAS listed in Chapter X on interpretation of Convention or Interpretation of any other treaty concerning the protection of human rights in the American States Inter-American Court Advisory Opinion  OAS member state on the compatibility of any of its domestic laws with the above mentioned instruments  153 Figure 3: Procedure of Adjudicatory Jurisdiction before the Inter-American Court of Human Rights Individual complaint -Individual -Group of persons -recognized nongovernmental entity  State complaint -special declaration ratified -or on "ad hoc basis" Submission to the Commission: (Completion of procedures of articles 48-50) 1. Permission admissible (preconditions of article 46 and 47 exists) 2. Commission ascertains the factual allegations by -hearings -documents -investigations  friendly settlement  Report setting forth facts and conclusions Transmission to the states concerned with proposals and recommendations After three month: either Commission or state concerned submits to the Inter-American Court of Human Rights Judgement or preliminary decision. Decision includes: 1. violation of convention 2. rights the injured party is entitled to enjoy 3. steps to be taken to remedy violation in addition: extraordinary remedy, article 63, provisional measures  case closed  154 Enforcement of judgement: Court informs OAS General Assembly, article 65  

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