WP The Advisory Power of the Inter American Court_protected.pdf

Dimitris Liakopoulos

Charles Evans Hughes said m that “[w]e are under a Constitution, but the Constitution is what the judges say it is.” Today, nevertheless, in Latin America, it would be more appropriate to say that we are under the American Convention on Human Rights, but the Convention is what the judges of the Inter-American Court of Human Rights say it is. This change in the paradigm comes thanks to the conventionality control theory developed by the Inter-American Court of Human Rights in the last several years. In brief, this conventionality control (or control of conventionality) demands that inter-American and domestic judges examine the compatibility of national rules and practice with the American Convention on Human Rights as interpreted by the Inter-American Court. For domestic judges, this duty comes in addition to traditional constitutionality control or judicial review within their respective States. Since the Court started to use the concept of conventionality control, a plethora of articles have explained its origins, legal foundations, development, characteristics, consequences, and limits. In this Article I will not repeat these explorations. On the contrary, I will take a different path, presenting the conventionality control as part of a bigger project pursued by the Court (and its supporters) in conceiving itself as an Inter-American constitutional court. My analysis of the conventionality control is also part of a bigger personal project in which I analyze and offer constructive criticism of the structure and functioning of the inter-American system and propose ways to improve it. First this Article will discuss how the theory of conventionality control partly modifies the theoretical paradigm on which the inter-American system of human rights rests. Traditionally, the inter-American human rights system was conceived of as being subsidiary and complementary to the national legal order. The conventionality control, however, does not act in a complementary or subsidiary manner, but places the American Convention and its inter-American judicial interpreter, the Court, at the top of the legal order. The Convention is no longer a subsidiary treaty but an integral, fundamental, and hierarchically superior norm of the national domestic legal system. In this way, the Court is developing a new principle, which I will refer to as the integration principle. This principle comes to complement, not to replace the traditional principle of subsidiarity. This transformation occurred, this Article argues, despite the lack of clear textual support in the Convention. Then, this Article delves into some of the consequences of this new approach. It explains that the conventionality control, by demanding that national judges apply the American Convention over domestic legislation as interpreted by the Court, positions the Inter-American Court as a kind of inter-American constitutional court. The conventionality control also changes the role of domestic judges by requiring them to be the guardians of the supremacy of the Convention as interpreted by the Court. Additionally, the Court may be requiring Latin American tribunals to exercise a judicial review that they are prevented from doing under their own Constitutions. Rather than having a single Inter-American Court as the treaty’s interpreter, this Article speculates about the consequences of having thousands of Latin American courts and tribunals,9 as required by the conventionality control, each interpreting the American Convention. This Article then presents some questions on the proper balance between national and inter-American judges. In sum, I argue that the conventionality control is one of the tools the Court uses to define its own identity and role in the hemisphere and to continue the move to a more judicialized approach to human rights protection. Nevertheless, this Article argues that the Court’s approach to conventionality control is unidirectional as it does not properly embraces domestic judges in this enterprise. In order to overcome the limits of the Court’s approach, this Article develops an alternative justification and framework for the integration principle. It recognizes that social change will come from within the countries. Thus, making the Convention an integral part of the domestic system could facilitate and promote social change based on human rights standards. The proposal also conceives the relationship between the Court and Latin American judges as a political one where each of them responds to different constituencies and demands at the same time. The integration model, I argue, facilitates the socialization process by which international human rights norms are implemented at the local level. Recognizing the importance of Latin American judges, the proposed integrated model advocates for a more balanced relationship and for a cautious loyalty with the Court and a willingness to question or challenge the Court, rather than a mechanical embracement of its case law. This Article concludes with a proposal that takes seriously both the conventionality control and the integration principle. This Article proposes amendments to the Convention, as well as procedural and jurisprudential changes to strengthen and deepen the principle of integration to complement that of subsidiarity. My proposal attempts to overcome some of the critiques to the conventionality control.

In this Article, Judge Sergio García Ramírez of the Inter-American Court of Human Rights and Eréndira Ramos explore the complex and often vexing relationship between the Inter-American Human Rights system and the domestic human rights protections within the system's member states. García Ramírez identifies a number of challenges to implementing human rights protections in Latin America, many of which are rooted in a history of authoritarianism in the twentieth century and the nascent nature of the region's democratic institutions. Yet he sees solutions in the role of the Inter-American Court in the region. García Ramírez highlights the Court's role in interpreting international human rights laws for the region and the increasing role of national judges in integrating these rights into national systems. Thus, with this body of law as a baseline, he believes that through careful legal and political dialogue and a greater exercise of conventionality control, among other steps, the domestic and international human rights regimes in the region can work together to ensure greater respect for and protections of individual persons. Participación como colaboradora.

The paper undertakes a comprehensive quantitative research on the subject of American States' compliance with international judgments on human rights' issues. The research analyses the level of effectiveness of the Inter-American Human Rights System, showing that the data annually published by the Inter-American Court in its Reports might not be the only way of understanding the actual degree of effectiveness of the system. Furthermore, some ideas are evaluated regarding possible paths in order to improve the current situation.

1 International and European Union legal Matters January, 2016, no.1 ISSN:2459-3575 INTEULM Working Papers The Advisory Power of the Inter American Court by D.I.Liakopoulos The Advisory Power of the Ιnter American Court 2 International and European Union legal Matters January, 2016, no.1 © D.I.Liakopoulos, 2016 www.inteulm.jimdo.com The Advisory Power of the Ιnter American Court 3 International and European Union legal Matters January, 2016, no.1 The Advisory Power of the Inter American Court by D.I.Liakopoulos Abstract: The present work is focused on the analysis of the advisory power of the Inter American Court. The advisory power is concentrated especially on the field of protection of human rights as we could see in the region of Latin America. Friendly settlement procedure applicable to the American convention and decisions of the inter-American Courts are legally binding on those governments that have recognized the Court’s jurisdiction. Petitions brought under the American system are likely to receive greater publicity than complaints to the human rights committee and governments appear to be more disposed to cooperate with a regional organization to solve human rights problems. Key words: Inter American Court, Protection of Human Rights, Advisory Power, Latin America, Interim Measures The Advisory Power of the Ιnter American Court 4 International and European Union legal Matters January, 2016, no.1 Index: 1.Introduction; 2.The Inter American Court and its institutional context; 3.The advisory power of the Court; 3.1. Advisory jurisdiction: its role and scope; 3.2. Disguised contentious cases; 4.Jurisdiction under Article 64 (2); 5.Selected procedural issues; 6.Enforcement of judgments: Efficacy of advisory jurisdiction; 7.The rules of procedure; 8.The special character of human rights Treaties; 9.Conclusions; 10.Bibliography. The Advisory Power of the Ιnter American Court 5 International and European Union legal Matters January, 2016, no.1 1.The idea of a Court to protect human rights in the Americas has a long and important history. The Organization of American States 1 has as main concept the establishment of a democratic constitutional order in the Americas2, although the democratic nature of the States is not a precondition for membership. The main scope of the OAS was the 1The origins of the Organization of the American States was initiated with the creation of the International Union of American Republics at the first International Conference of American States which is held in Washington between 2 October 1889 and 9 April 1890. We could not theorize the international union as an international organization but as a system of conferences which the objectives was for economic and commercial changes and the peacefully solution of the disputes of the participated States. The organization was influenced obvious from the Monroe doctrine and a commercially orientation versus the western hemisphere. During the years we could observe many conferences organized not only based in the economic and commercial spirit. One of the most important Conference was held in Mexico, in 1945 with the adoption of the Act of Chapultepec. A non-binding conference which has confirmed the concept of solidarity, security and collective security in the region of Latin America. Since the 1951 OAS has been amended for times. Also the second amendment to the charter took place in 1985 in Cartagena de Indias in Colombia. In the cited amendment was established the Secretary General of the organization based on the spirit of the United Nations charter and in particular under article 99. The chapter VI of the charter elaborates the system of collective security, chapter VII deals in a detailed and comprehensive fashion with the valuation of internal development. The organs of OAS is: the General Assembly, the meeting of consultation of Ministers of Foreign Affairs, the Councils, the Inter-American juridical committee, the inter-American Commission on human rights, the General Secretariat, the specialized conferences and the specialized organs. Between the main objectives of the OAS is also the protection of human rights. There is a particular article in the charter, which is declared the fundamental rights of individuals of a particular institutions to take measures to promote or protect, respect fundamental rights of the individual. The preamble of the Declaration of the rights and duties of man as resolution XXX declares: «the international protection of the rights of man should be the principal guide of an evolving American law; the affirmation of essential human rights by the American States together with the guarantees given by the internal regions of the States establish the initial system of protection considered by the American states as being suited to the present social and juridical conditions not without a recognition on their part that they should increasingly strengthen the system in the international field as conditions become more favourable (...)». The first part of the resolution VIII called the inter-American Commission on Human Rights to draft a Convention on Human Rights and a Convention for the creation of an inter-American Court of Human Rights. Also under the Protocol of San Salvador is imposed the adoption of The Advisory Power of the Ιnter American Court 6 International and European Union legal Matters January, 2016, no.1 protection of democracy and the respect of the principle of non– intervention3 in other States4. The affirmation of democracy5 and human rights was taken through the years without the American Declaration of the Rights and Duties of Man in 1948 and the American measures, based in the cooperation with other States, for the full observance and protection of human rights protection contained in this protocol. The protocol of San Salvador contains restrictions and limitations in relation in the recognized rights. In particular the Court has declared in relation in the article 30 (restrictions) of the Convention: «(...) that article 30 could not establish new restrictions to rights protected by the convention additional to those allowed under the rules governing each of the rights (...)». It is also referred certain rights like the right to life, freedom from slavery, the right to national security, ecc. The restrictions must be taken place for the public good, security and stability. This provision in relation with article 27 contained the margin of appreciation which the States taken in relation for the protection of human rights and the certain criteria that they must be satisfied for the dignity of these rights. In this way the inter-American court has view the convention as a treaty sui generis, as an instrument which is concerned first of all with the protection of the satisfaction of the human rights protection and individual dignity. The court in effect of reservation has emphasized that the american Convention is not a traditional multilateral treaty, because the States after the jurisdiction of the court they have many obligations not in relation to other States but in relation to all individuals. This opinion was also states from the Court in the genocide convention case. In particular is written: «(...) the Convention was manifestly adopted for a purely humanitarian and civilizing purpose (...) the accomplishment of those high purposes which are the raison d’étre of the Convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to state, or of the maintenance of a perfect contractual balance between rights and duties (...)». See: A. H. ROBERTSON, Revision of the charter of the Organization of American states, in «International and Comparative Law Quarterly», 1968, pp. 345 ss. C. CERNA, The structure and functioning of the inter–American court of human rights, in «British Yearbook of International Law», 1993, pp. 135 ss. FERNANDEZ–SHAW, La Organizaciòn de los Estados Americanos, Madrid, 1963. FENWICK, The Organization of American states, Washington, 1963. PEREZ GONZALEZ, La reponsabilidad internacional de entes distintos de los Estados, in Diez de Velasco, Institutiones de derecho internacional publico, Madrid, 1994. GAUHAR, Regional integration: The Latin American experience, London, 1985. PERRET, Τhe OAS in the centennial of the inter–American system, Mexico, 1992. VALENTI–ROMANO, Le organizzazioni internazionali in America Latina, Perugia, 1983. 2See the tenth inter–American conference in Caracas, Venezuela, March 1–28, 1954. In The Advisory Power of the Ιnter American Court 7 International and European Union legal Matters January, 2016, no.1 Convention on Human Rights in 19786. Both of the two «charters» have recognized «the fundamental rights of the individual without distinction as to race, nationality, creed or sex»7. In the OAS Charter of 19488, emended by the 1967 Protocol of Buenos Aires, the member States have declared their confidence: «that the true particular: «(...) it is expressed the determination of the American States to take the necessary measures to protect their political independence against the intervention of international communism, acting in the interests of an alien despotism (...) that the domination or control of the political institutions of any American state by the international communist movement, extending to this hemisphere the political system of an extra–continental power, would constitute a threat to the sovereignty and political independence of the American States (...) this declaration of foreign policy made by the American republics in relation to dangers originating outside this hemisphere is designed to protect and not to impair the inalienable right of each american State freely to choose it own form of government and economic system and to live its own social and cultural life (...) the conviction of the American States that one of the most effective means of strengthening their democratic institutions is to increase respect for the individual and social rights of man, without any discrimination and to maintain and promote an effective policy of economic well-being and social justice to raise the standard of living of their peoples (...)». Abstract from the Tenth inter-American conference, published in «American Journal of International law», supplement documents, 1954, pp. 124 ss. C. G. FENWICK, The organization of central American states, in «American Journal of International law», 1952, pp. 510 ss. 3LEE, Peacekeeping and human rights: A proposed OAS response to civil strife in Latin America, in «Virginia Journal of International Law», 1982, pp. 295 ss. RAMABOTH–WOODHOUSE, Humaniarian intervention in contemporary conflict, Cambridge 1996. SANTOSCOY, La Commission interaméricaine des droits de l’ homme e le devéloppement de sa compétence par le systéme des pétitions individuelles, Paris, 1995. D. WIPPMAN, Pro–democratic intervention by invitation, in G.H.Fox and B.R.Roth, Democratic governance and international law, Cambridge Universiy Press, 2000, pp. 293 ss. D. WIPPMAN, Legal justifications for military intervention in internal conflicts, in «Columbia Human Rights Law Review», 1996, pp. 435 ss. W. M. REISMAN, Humanitarian intervention and fledging democracies, in «Fordham International Law Journal», 1995, pp. 795 ss. C. M. CERNA, Universal democracy: An international legal right or the ripe of the west?, in «New York University Journal of International Law and Policy», 1995, pp. 290 ss. C. G. FENWICK, The inter–American neutrality committee, in «American Journal of International Law», 1941, pp. 12 ss. Q. WRIGHT, Is discussion intervention?, in «American Journal of International Law», 1956, pp. 102 ss. M. E. TARDU, The Protocol to the United Nations Covenant on civil and political rights and the inter–American system: A study of co–existing petition The Advisory Power of the Ιnter American Court 8 International and European Union legal Matters January, 2016, no.1 significance of Americas solidarity and good neigbourliness can only mean the consolidations on its continent, within the framework of democratic institutions of a system of individual liberty and social justice based on respect for the essential rights of man (…)» 9. In particular in the article n. 3 is re–declared that: «the solidarity of the procedures, in «American Journal of International Law», 1976, pp. 778 ss. C. G. FENWICK, Intervention and the inter–American rule of law, in «American Journal of International Law», 1959, pp. 875 ss. In particular is declared that: «(...) a President of the United States in 1904 assuming the role of an «international policeman» to put an end to disorders in the Caribbean and a Secretary of State of the United Sates in 1959 declaring that the principle of non– intervention was the foundation stone of Hemisphere relations (...) the United States accepted «the general principle of non-intervention», although entering a reservation to the absolute form in which the principle was stated in the treaty (...) while condemning unilateral intervention the Buenos Aires conference of 1936 made provision for consultation in the event of a threat to the peace, thus obligating the inter-American community to accept a collective responsibility to find a solution for situation similar to those that President Roosvelt had felt the exercise of his «international police power» (...) the condemnation of intervention in the old unilateral sense, it was explicitly recognized that measures taken by the regional group for the maintenance of peace and security in accordance with existing treaties would not constitute a violation of the principle of non–intervention (...) article 15 and 17 of the Charter of the Organization of American States are explicit in that respect (...) in contrast with the wide scope of the obligations resulting from the principle of unilateral non-intervention is the more limited scope of the right of collective intervention recognized by the Charter as permissible when «in accordance with existing treaties». The offensive word «intervention» does not occur, but the exception clearly indicates the character of the measures it might be necessary to take (...) Collective intervention thus has its limits, and they would appear to preclude action beyond the immediate threat to the peace that might lead to the convocation of a meeting of foreign ministers (...)». 4The Charter declares that «no state or group of states has the right to intervene, directly or indirectly for any reason by armed force or any other form of interference» (art. 19). G. H. FOX, The right to political participation in international law, in «Yale Journal of International Law», 1992, pp. 540 ss. M. FRANCK, The emerging right to democratic governance, in «American Journal of International Law», 1992, pp. 65ss. 5The Protocol of Cartagena de Indias has amended, that: «representative democracy is an indispensable condition for the stability, peace and development of the region and to provide that it was one of the essential purposes of the OAS, to promote and consolidate representative democracy (...)». See also: D. SHELTON, Representative democracy and human rights in the The Advisory Power of the Ιnter American Court 9 International and European Union legal Matters January, 2016, no.1 American States and the high aims which are sought required the political organization of those States on the basis of the effective exercise of representative democracy»10. Under the international agreements declared from international organizations or States in 1997 the General Assembly of the OAS decided to amend the Charter western hemisphere, in «Human Rights Law Journal», 1991, pp. 353 ss. See also the Santiago Declaration. Declaration of the Heads of that and Government of the evaluation of the firstfifteen years of existence of the Rio group and mechanism for the new century. In Particular is declared: «(...) we recognize the important role played by the Rio group in promoting and fostering peace in region, which is today the most valuable asset in our countries. We coincide in that the Rio group has made a significant contribution to increase the political concentration and dialogue attained in the region (...) the full effect of and compliance with human rights and fundamental freedoms of our people is a guiding permanently observed and endorsed by the Rio group. We commit ourselves to strengthen the inter–American system for the protection of human rights, ensuring that the entities within this system will have available the necessary resources to enable them to operate more effectively (...) recognizing the importance of improving the international community’s responsiveness to major humanitarian crises, consistent with the rules and principles contained in the charter of the United Nations, we note with interest the progress achieved in the report of the reflection group on «collective responsibility in the face of humanitarian crisis situations» and the deliberations that took place in this Summit (...) we express our conviction that regional coordination and cooperation will facilitate and promote the full use, at a national level, of digital technologies for development, thus contributing to the streamlining of our economic and to social progress. We coincide with the act that the Rio group should actively participate in international fora dealing with information society (...)». 6The resolution adopted in 1901–1902 at the second international conference of American States which is held in Mexico city. It is declared that: «(...) international protection of the essential rights of man would eliminate the measure of diplomatic protection of citizens abroad, the exercise of which has more than once led to the violation of the principles of non– intervention and of equality between nationals and aliens, with respect to the essential rights of man (...)». See also the Declaration of Port of Spain, 2009. 7See also the adoption of the Santiago commitment in relation of democracy and human rights protection, adopted on June 4, 1991. In particular the Santiago commitment has posed two fundamental questions. First of all the notion of democracy in the area of Latin America and the legitimate exercise of power by the democratic governments in the region. See: R. B. ROTH, Evaluating democratic progress: a normative theoretical perspective, in «Ethics and International Affairs», 1995, pp. 55 ss. The Advisory Power of the Ιnter American Court 10 International and European Union legal Matters January, 2016, no.1 including the principal aims of the organizations and to declare, ex novo, the elimination of the poverty, the consolidation of democracy, the constituted democratically government and «a highest values of a democratic society»11, such is declared from the Court in an advisory opinion on Habeas corpus in emergency situation in 198712. The Ninth International Conference of American States (Bogotà, 8ORIHUELA CALATAYD, El pacto de Bogotà y la corte internacional de justicia, in «Revista Espanola de Derecho Internacional», 1990, pp. 415 ss. 9SIMMONDS, International economic organizations in Central and Latin America and the Caribbean, in «International and Comparative Law Quarterly», 1970, pp. 376 ss. 10The inter-American conference of Mexico in 1968 has proposed that the cited article should not contain any list of non-suspendable rights. Only the United States ab initio has declared that was essential the analysis of all the enumeration of the articles in relation not only of the human rights but also the reaction also of the commission «to draft a text containing the right to juridical personality, the right to personal integrity, the right to freedom from ex post facto laws, the right to participate in government, ecc». Also on the basis of art. 1 (1) of the convention this means that the states parties «have not only the legal duty to recognise and respect the rights and freedom to protect and ensure the exercise of such rights and freedoms by means of the respective guarantees» namely «through suitable that will in all circumstances ensure the effectiveness» thereof. Advisory opinion OC–8/87, Serie A, n.8, pp. 30, para. 11. In the case also Velàsquez Rodriguez, Fairén Garbi and Solis Corrals and Codinez Curz, the Court emphasised that: «(...) remedies that must be substantial in accordance with the rules of due process of law (art. 8, (1)) all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the convention to all persons subject to their jurisdictions (art. 1) (...)». 11CAMINOS, New departure in the exercise of inherent powers by the UN and OAS Secretaries– General: the central American situation, in «American Journal of International Law», 1989, pp. 396 ss. 12«(...) it is also a conditio sine qua non for the development of political parties, trade union, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its opinions, to be sufficiently informed. Consequently it can be said that a society that is not well informed is not a society that is truly free». See also: I–A Court, compulsory membership in association prescribed by law for the practice of journalism (Arts. 13 and 29 of the American Convention on human rights), advisory opinion OC–5/85 of November 13, 1985, Series A, n.5, p. 122, para. 69, ecc. The Advisory Power of the Ιnter American Court 11 International and European Union legal Matters January, 2016, no.1 Colombia, 1948)13 in its Resolution XXXI entitled «Inter-American Court to protect the Rights of Man»14, considered that the protection of these rights «should be guaranteed by a juridical organ, in as much as no right is genuinely assured unless it is safeguarded by a competent court», and that «where internationally recognized rights are concerned, juridical protection, to be effective, should emanate from an international organ». It therefore recommended that «the Inter-American Juridical Committee prepare a draft statute providing for the creating and functioning of an Inter–American Court to guarantee the rights of man»15. 13J. L. KUNZ, The Bogota charter of the Organization of American States, in «American Journal of International Law», 1948, pp. 570 ss. «(...) the first fundamental change brought by the charter consists in creating at least a treaty–basis for Pan America (...) amendments will enter into force among the ratifying states when two thirds of the signatory states have deposited their ratification and with respect to the recalling in the order of their deposit of ratification. This procedure is very different from the amendment procedure of the League of Nations (LN) or of the United Nations (UN). It does not bind the States which have not consented nor are they forced to leave the OAS (...) the OAS has been a strictly regional or continental organization: only American states can be members (...) the second great change brought about by the Bogotà charter in the reorganization and centralization of the OAS. Art. 4 names as purposes of the OAS: the strengthening of the peace and security of the continent, the pacific settlement of inter-American disputes group action in the event of aggression, political and non-political cooperation and promotion of inter-American welfare (...) all members states have the right to be represented at the inter-American conferences. This seems to re-establish the legal rule that the right to be represented does not depend on whether the de facto governmental of a member State is or is not recognized at the time in question (...) the third great change brought about by the Bogota charter is to transform the OAS which had hitherto been an independent organization in independent particularly with reference to the LN, into a regional system within the UN and in conformity with the provisions of the UN charter (...)». 14CAVALLARO, Re-evaluating regional human rights litigation in the twenty first century: The case of the inter-American court, in American journal of international law, 2008, pp. 769 ss. 15International Conferences of American States, Second Supplement: Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.I.V/II82, doc.6 rev.1 at 13 The Advisory Power of the Ιnter American Court 12 International and European Union legal Matters January, 2016, no.1 The two organs for the protection of human rights in region of Latin America and especially in the lieu of the Organization of American States16 are the Inter–American Commission on Human rights 17 and the Inter–American Court. The Organization of American States (OAS) is a political and technical forum, based and influenced from the United Nations system18 during the years and with main objective the elaboration and adoption of legal instruments in relation with the region of Latin America19. A system which is based on dialogue, consolidation and enhancement of the Inter-American legal system20. (1992). F. V. GARCIA, The Inter-American system, treaties, conventions and other documents, London-Rome-New York, Oceana pbls 1983, voll.2 (compilation); G. KUTZNER, Die Organisation der amerikanischen Recht an der Universitàt Kiel, Hamburg, Hansischer Gildenverlag J.Heitmann & Go 1970. 16The inter-American system of human rights protection is in force through the 35 member states of the OAS. States from North America and the Caribbean and from Central and South America. The membership of the Caribbean states represents the organs of the organization, including those of the human rights system. 17The main objectives of the Commission is: a) to develop an awareness of human rights among the peoples of America; b) to make recommendations to the government of the member states in general; c) to prepare such studies or reports as it considers advisable in the performance of its duties; d) to urge the Organization of American States as an advisory body in respect of human rights. OAS, official records, OEA/Ser.L/V/II.16. 18H. CAMINOS, R. LAVALLE, New departures in the exercise of inherent powers by the UN and OAS Secretaries–General: The Central American situation, in «American Journal of International Law», 1989, pp. 395 ss. 19BOND, Regionalism in Latin America: prospects for the Latin American Economic System (SELA), in «International organization», 1978. DIAZ MÜLLER, El derecho econòmico y la integracio’n de America Latina, Bogotà, 1988. 20G. GROSSMAN, Proposals to strengthen the inter–American system of protection of human rights, in «German Yearbook of International Law», 1989, pp. 265 ss. B. SANTOSCOY, La commission inter–américaine des droits de l’ homme et le développement de sa compétence par le systéme des pétitions individuelles, Paris, 1995. E. VARGAS CARENO, Las observaciones in loco practicadas por la Comissiòn internamericana de derechos humanos, in Derechos Humanos en las Américas–Homenaje a la memoria de C.A. Dunshee de Abranches, Washington, 1984, pp. 290 The Advisory Power of the Ιnter American Court 13 International and European Union legal Matters January, 2016, no.1 In its report to the Inter-American Council of Jurists on 26 September 1949, the Juridical Committee considered that the lack of substantive positive law on the matter constituted a great obstacle in drafting the Statute of the Court and that it would be advisable for the Convention, which contains rules of this nature to precede the Statute 21. It felt that the Council of Jurists should to propose such a solution to the Tenth Inter-American Conference 22. The tenth Conference (Caracas, Venezuela, 1954) in its Resolution XXIX «Inter-American Court for the protection of Human Rights», referred this matter to the Eleventh Inter-American Conference for consideration, so that a decision could be made on the basis of studies compiled on the subject by the OAS Council. It instructed the Council to continue its work on the basis of existing proposals and in light of its ss. 21R. PIZA, Co–ordination of the mechanisms for the protection of human rights in the American convention with those established by the United Nations, in «American University Law Review», 1980, pp. 168 ss. A. H. ROBERTSON, The American convention on human rights and the European convention: A comparative study, in «Annuaire européen/European Yearbook», 1981, pp. 50 ss. 22Comitè Juridico Interamericano: Recomendaciones e Informes. Documentos Oficiales (19491953), pp. 105-110. N. BRANDT, Das interamerikanische friedens System Idee und Wirklichkeit Veröffentlichungen des Instituts fur Internationales Recht an der Universitàt Kiel. Hamburg .J. Heitmann & Go 1971, pp. 430-520. D. SHEININ, The Organization of American States. International Organizations Series, Voll. II, Oxford 1995. E. VARGAS CARRENO, The experience of the Inter-American Commission on Human Rights, in B. G. Ramcharan, International Law and fact finding in the field of Human Rights, The Hague-Boston-London 1982, pp. 137-150. OEA/Ser.P AG/RES. 1616 (XXIX–O/99) 29 April 1999. SCHWIETZKE, Organisation Amerikanischer Staaten und Amerikanische Menschenrechtskonvention: Dokumente und Literatur, in Festschrift für Jan Stèpàn, Zürich 1994, pp. 407–428. The Advisory Power of the Ιnter American Court 14 International and European Union legal Matters January, 2016, no.1 own experience. The Eleventh Conference, however, never took place 23 for political mainly reasons. Subsequently, the Fifth Meeting of Consultation (1959), in the first part of the resolution on «Human Rights» instructed the InterAmerican Council of Jurists to prepare two draft Conventions: one on «Human Rights» and another on the creation of an «Inter-American Court of Human Rights» and another on the creation of organs appropriate for the protection and observance of those rights 24. The Council of Jurists carried out its instructions and at its Fourth Meeting (Santiago, Chile, 1959) prepared a draft “Convention on Human Rights” which contained not only the substantive provisions on human rights, but also institutional and procedural regulations with regard to those rights, including the creation and operation of a Court and of an InterAmerican Commission on Human Rights. This draft was then brought before the Second Special Inter-American Conference for consideration. It decided to send the draft to the Council of the Organization 25, with instructions that it should update and complete it, after receiving the 23L. DE BLANC, The OAS and the promotion and protection of human rights. The Hague, M.Nijhoff 1977. R. E. NORRIS, The individual petition procedure of the Inter-American system for the protection of human rights, in Guide to international human rights practice, edited for the International Human Rights Law Group by Hurst Hannum (London 1984) pp. 108–132. 24See the complete text of the Draft Convention in Inter-American Council of Jurists, Fourth meeting 1959, Final Act, CJI, pp.52-81. 25C. A. DUNSHEE DE ABRANCHES, La corte interamericana de derechos humanos, in «La convenciòn Americana sobre derechos humanos», Washington, 1980, pp. 90 ss. The Advisory Power of the Ιnter American Court 15 International and European Union legal Matters January, 2016, no.1 opinion of the Inter-American Commission on Human Rights and any other organs and entities are felt advisable. It was then to convene an Inter-American specialized conference 26. On 10 April 1967 the Inter-American Commission on Human Rights presented its opinion to the Council. On 22 November 1969 the American Convention on Human Rights was adopted in San Josè, Costa Rica. Chapter VII of Part II of the Convention creates an Inter-American Court of Human Rights. The OAS General Assembly, which met in La Paz, Bolivia in 1979, approved the Statute of the Court (Resolution 448). Article 1 defines the Court as «an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights» 27. The Court has adjudicatory and advisory jurisdiction 28. The Court is 26Second special Inter-American Conference, Rio de Janeiro, 1965. OAS Official Documents, OEA/Ser/CI.13, pp. 49-50. S. DAVIDSON, The Inter-American Court of Human Rights, Dartmouth, Alderdhot, 1992. 27BUERGENTHAL, The Inter-American Court of Human Rights and the OAS, in «Human Rights Law Journal», 1986, pp. 157 ss. P. CAMARGO, The American Convention on Human Rights, in «Human Rights Law Journal», 1970, pp. 333 ss. 28See: Request for an advisory opinion by the Republic of Argentina, August 14, 2008; I/A Court H. R., Case of the 19 Tradesmen v. Colombia, 12.05.07; I/A Court H.R. Matter of Adriàn MelèndezQuijano et al., regarding El Salvador, 26.11.07. I/A Court H.R., Matter of Alemàn Lacayo regarding Nicaragua, 06.02.1997; I/A Court H.R., case of Alvarez et al. v. Colombia, 08.02.08; I/A Court H.R., Case of Bueno Alves v. Argentina of 02.02.07; I/A Court H.R., Case of CobelleroDelgado and Santana v. Columbia; I/A Court H.R., Matter of Carlos Nieto et al., regarding Venezuela of 26.01.09; I/A Court case of Carpio-Nicolle et al., v. Guatemala, 18.11.08; I/A Court H.R., Matter of Colotenango regarding Guatemala; I/A Court H.R., Matter of the Communities of Jiguamiandò and Curbaradò regarding Colombia, 05.02.08; I/A Court H.R., Matter of Urso Branco prison regarding Brazil, 02.05.08; I/A Court H. R., Matter of the peace community of San Josè de The Advisory Power of the Ιnter American Court 16 International and European Union legal Matters January, 2016, no.1 first and foremost, an autonomous judicial institution with jurisdiction both to decide any contentious case concerning the interpretation and application of the convention as well as to ensure to the victim of a violation of the rights or freedoms29 guaranteed by the Convention for the protection of those rights. As regards its adjudicatory jurisdiction 30, only the Commission and the States Parties to the Convention are Apartedò regarding Colombia, 06.02.08; I/A Court H.R., Case of the Mayagna (Sumo), Awas Tingui Community v. Nicaragua of 29.01.08; I/A Court H.R., Case of the Mapiripàn Massaere v. Colombia 03.05.08; I/A Court H.R., Matter of the Mendoza prisons regarding Argentina, 17.10.08; I/A Court H.R., Case of the Gòmez-Paquiyauri Brothers v. Peru of 22.01.09; I/A Court H.R., Matter of Monagas judicial confinement center (La Pica) regarding Venezuela of 03.07.07; I/A Court H.R., Case of the Miguel Castro-Castro Prison v. Peru of 29.01.08; I/A Court H.R., Case of Gloria Giralt de Garcia Prieto et al v. El Salvador of 27.01.07; I/A Court H.R., Case of Guerrero-Gallucci and Martinez-Barriòs v. Venezuela of 29.11.07; I/A Court H.R., Matter of Leonel Pivero et al. regarding Mexico, 25.11.08; I/A Court H.R., Matter of Luisiana Rios et al. regarding Venezuela of 03.07.07; I/A Court H.R., Matter of Lysias Fleury regarding Haiti of 25.11.08; I/A Court H.R., Matter of Mary Naranjo et al. regarding Colombia of 31.01.08, I/A Court H.R., Matter of Pilar Noriega et al. regarding Mexico, 06.02.08; I/A Court H.R., Marrter of Ramirez Hinostroza et al. regarding Peru of 17.05.07; I/A Court H.R., Case od Raxcacò. Reyes et al v. Guatemala of 09.05.08; I/A Court H.R., Matter of Serech and Saquic regarding Guatemala of 19.09.07; I/A Court H., Case of Suàrez-Rosero v. Ecuador of 28.06.06. 29See CDH–CP1/00 English. Press release, 10 February 2001. In relation of Baena Ricardo et al. Case (Panama), the Commission submitted in this case on January 16, 1998 which refers to the alleged violations, by the State of Panama, under article 8, right to a fair trial, art. 9 freedom from ex post facto laws, art. 10 right to compensation assembly, art. 16 freedom of association, art. 25 right to judicial protection of the Americas states in relation with articles 1 and 2 of the same as a result of the facts, occurred as of December caused the alleged arbitrary release of 270 public employees who had participated in a benefits as well as the process stemming there from, in which their judicial guarantees a judicial protection were allegedly violated. 30We must observe that the commission has not establish a procedure against recalcitrant states enforcing in this way the adjudicatory power of the court. In particular the article 65 of the convention refers that the court should inform General Assembly in relation of situations which permitted to the Assembly to discuss the matter and to adopt political measures. These «regular sessions» of the Assembly that not means the obligation of discussing of various «matters» from a special session of that body or by the permanent council of OAS. The court is really free to call the Council’s attention in cases with emergency character. (art. 65). The Advisory Power of the Ιnter American Court 17 International and European Union legal Matters January, 2016, no.1 empowered to submit cases concerning the interpretation and application of the Convention. However, the procedures before the Commission called for under Articles 48-50 of the Convention must have been previously exhausted. In addition, in order that a case against a State party should be brought before the Court, the State Party should recognize the jurisdiction of the Court31. This may be done by a declaration accepting the Court’s jurisdiction in all cases or on the basis of reciprocity for a limited time or for a particular case. As regards the advisory function of the Court, Article 64 of the Convention provides that any member State of the Organization may consult the Court on the interpretation of the Convention or of other Treaties on the protection of human rights in the American States and the evolution of international law in the area of Latin America32. The right of consultation is also extended to the 31C. A. DUNSHEE DE ABRANCHES, La corte interamericana de Derechos humanos, La Convenciòn Americana sobre derechos humanos, OAS General Secretariat, Washington, 1980. A. G. MOWER, Regional human rights: A comparative study of the west european and inter– American systems, Greenwood, New York, 1991. O. C. STOETZER, The Organization of American States, 2nd edition, Praeger, New York, 1993. R. J. BLOOMFIELD, Making the Western Hemisphere safe for democracy: The OAS defense–of–democracy regime, in «Washington Quarterly», 1994, pp. 160 ss. S. DAVIDSON, Remedies for violations of the American convention on human rights, in «International and Comparative Law Quarterly», 1995, pp. 406 ss. J. DIAB, United States ratification of the American convention on human rights, in «Duke Journal of Comparative and International Law», 1992, pp. 325 ss. L. DIAMOND, Democracy in Latin America: Degrees, illusion and directions or consolidation, in T. Farer (ed.), Beyond sovereignty: Collectively defending democracy in the Americas, Johns Hopkins University Press, Baltimore, 1996. 32The inter-American system has culturated the inter american program for the development The Advisory Power of the Ιnter American Court 18 International and European Union legal Matters January, 2016, no.1 organs listed in Chapter X of the OAS Charter, within their sphere of action. The Court may also, at the request of any member State of the organization, issue an opinion on the compatibility of any of its domestic law with the aforementioned international instruments 33. The States Parties of the Convention choose the first seven judges of the Court and its seventh special session of the OAS General Assembly (May 1979). The Court was officially installed in San Josè, Costa Rica, where it has its seat, on 3 September 1979. The Court at its Third Regular Session, held 30 July–9 August 1980, adopted its Rules of procedure. At that same session, it also completed the work on a «Headquarters Agreement» with Costa Rica setting out the immunities and privileges of the Court, its judges and staff and the persons who appear before it. This Agreement has been ratified by the Government of Costa Rica. Latter the regulations of the Court were reformed and approved at its Twenty-Third Regular Meeting held January 9-18, 1991. of international law. A programme which is organized for the first time in 1974 by the interAmerican Juridical Committee, in collaboration with the General Secretariat. The interAmerican program of the development of international law provided the ended to organize with the collaboration of institutions in the distinct member states, courses at the subregional or national level concerning the distinct aspects of inter-American law. Any year the programs of international law was concentrated in other fields of law like the humanitarian law, the arbitral commercial law, the incorporation into domestic law and application of the two interAmerican conventions pertaining to weapons, the inter–American system of legal information. 33T. BUERGENTHAL, The Advisory Practises of the Inter-American Court of the Human Rights, in «American Journal of International Law», 1985. The Advisory Power of the Ιnter American Court 19 International and European Union legal Matters January, 2016, no.1 2.The draft Statute 34presented to the OAS General Assembly by the Court in 1979 envisaged a permanent tribunal consisting of full–time judges35. This proposal was motivated by the Court’s concern that a part-time tribunal might give to that body an ad hoc image, likely to diminish the prestige and legitimacy it might need to obtain compliance with and respect for its decisions in the Americas. The General Assembly found this proposal unacceptable, ostensibly at least on the ground that a full-time Court would be too expensive and was unjustified until the Court had a substantial case load. The General Assembly adopted the Statute and leaves the judges free to exercise their respective professions and stipulates merely that certain types of employment, particularly active government service, are incompatible with their judicial functions (Statute, Art. 18 ). As a result, the judges are not on the OAS payroll. They are not required to live in Costa Rica and they are free to practice law, to teach and to engage in whatever 34Rules of Procedure of the Inter-American Court of Human Rights in Effect as of January 1, 1997, Inter American Chamber of Human Rights. 35See articles 20 and 22 of the draft Statute the Court’s draft also contained an alternative possibility, envisaging a system in which the judges would devote 50% of their time to the work of the Court. The Convention provides that these issues are to be regulated by the Court’s Statute. C. CERNA, The structure and functioning of the Inter-American Court of the Human Rights (1972-1992), in «British Yearbook of International Law», 1992. S. DAVIDSON, Remedies for Violations of the American Convention on Human Rights, in «International and Comparative Law Quarterly», 1986, pp. 404 ss. P. CAMARGO, The American Convention on Human Rights, in «Revue des droits de l’homme», 1970, pp. 333-337. The Advisory Power of the Ιnter American Court 20 International and European Union legal Matters January, 2016, no.1 other occupations they may have in their native countries36. The Court, however, did persuade the General Assembly to include two provisions in the Statute that might facilitate the Court’s transformation from a part-time to a full-time tribunal 37. One of these is Article 16, which requires the judges to «remain at the disposal of the Court» and to «travel to the seat of the Court or to the place where the Court is holding its sessions as often and for as long a time as may be necessary, as established in its Regulations» (see the Rules of procedure). Seven judges, must be nationals, comprised those of the inter–American Court. Judges should be elected among jurists of the highest moral authority, like all the international Court’s and of recognized competence in the field of human rights and they must 36R. NIETO NAVIA, La corte y el sistema interamericano de derechos humanos, San José, 1994, pp. 455 ss. 37See: inter-American Court of human rights. Cesti Hurtado Case. Interpretation of the judgement of the merits, article 67 of the American convention on human rights, judgement of January 29, 2000. In accordance with the article 67 of the convention the court is competent to interpret its judgement and the request of interpretation. In 1999 under the article 67 of the convention and article 58 of the rules of procedure, the state submit a request for interpretation of the judgement on the merits. In particular the court stated that: «the proceeding against Gustavo Cestri Hurtado under the military justice system was incompatible with the American convention on human rights and order the state to annual this action and all the effects that may drive from it, also the decision made by the public law chamber on the situation of Gustavo Cestri Hurtado concluded the matter that concerns this court in relation to articles 7 and 25 of the convention, because a tribunal with competence on protective measures adopted a final, unappealable decision conceding habeas corpus to the petitioner and protecting him from the objective threat to his liberty resulting from procedures initiated under military jurisdiction. This decision not impede the competent authorities, if appropriate, from making decisions on the criminal responsibility of Gustavo Cesti Hurtado with regard to the illegal acts attributed to him. Such decision do not concern the Court, but rather the competent domestic tribunals (...)». The Advisory Power of the Ιnter American Court 21 International and European Union legal Matters January, 2016, no.1 possess the qualifications for exercising the highest judicial functions in conformity with the law of their States. The other provision bearing on this issue is Article 17, which declares that «the emoluments of the President and the judges of the Court shall be set in accordance with the obligations and incompatibilities imposed on them by Articles 16 and 18». Thus, if the Court’s work load consistently required it to stay in session for most of the year, the Court could amend its Rules of Procedure and propose to the General Assembly to modify the Article 18 of the Statute–the provision dealing with incompatibilities–to require judges to discontinue their outside professional activities and to fix a salary for them. The resulting financial burdens for the OAS would be justified only by a dramatic increase in the case load of the Court38. Titular judges are elected for a six year term in secret ballot with an absolute majority of votes of the States parties to the connection under the supervision of the General Assembly of the OAS. They may be elected for a further period of six years without possibility of re– election. The States should propose three nominees at least one of whom must be a national of a State other than the nominating State 38L. FROST, The evolution of the Inter-American Court of Human Rights: Reflection on present and Former Judges, in «Human Rights Quarterly», 1992, pp. 170 ss. M. VENTURA, Costa Rica and the Inter-American Court of Human Rights, in «Human Rights Law Journal», 1983. The Advisory Power of the Ιnter American Court 22 International and European Union legal Matters January, 2016, no.1 where a full State is proffered. After the expiration of their work a new elected judge begun to hear and to take the seat until the case will be conclude. The President of the Court and the Vice–President, is elected for 2 years. Article 16 of the statute provides, moreover, that «the President shall render his services on a permanent basis». This provision has thus far not been interpreted to require the President to reside at the seat of the Court or to suspend the exercise of his profession. A stipulation imposing these requirements was not approved by the General Assembly in 1979, and the budget provided the Court by the OAS has as yet not envisaged a salary for the President or compensation different from that received by the other judges. There is clear the obligations that the Statute imposes on the President, if coupled with a heavy case load, might well necessitate a full-time presidency39. Although the Statute provides that the President and Vice-President may be reelected, the Court appears on favor some form of rotation coupled with single terms for both officers. The President of the Court is, under article 16 (2) of the Statute, required to serve on a full–time basis. The President and the vice–President must be elected by the 39M. LEIGH, American Convention on Human Rights. Advisory Jurisdiction of a Reservation: Death Penalty, in «American Journal of International Law», 1984, pp. 881 ss. J. SILVA, Los derechos humanos en Amèrica, Santiago de Chile, 1968, pp. 35-50. The Advisory Power of the Ιnter American Court 23 International and European Union legal Matters January, 2016, no.1 Court from among its members by an absolute majority of votes determined by a secret ballot of the titular judges. The duties and the obligation of the President are contained to the article 12 (2) of the Statute which provides that: «the President shall direct the work of the court». The article 4 (1) of the Court’s rules declared that: the President present the Court legally and officially, preside over the meetings of the court and to submit for its consideration the topics of the agenda, to rule on points of order that may arise during the discussions for the Court, to direct and promote the work of the Court, to present any special or regular session a report on the manner in which, during the recessions he has discharged the functions which conferred upon him by these rules, exercise other functions as conferred upon him by the statute. Also the vice–President exercise the duties of the President when is absent. Where the President and the vice–President are unable to participate in the hearing of the case their seat must be taken by the remaining judges in accordance of the article 13 of the Statute. There is also an unwritten preference for geographic balance that is designed to ensure that the President and the Vice-President are nationals of different regions of the Americans. We have also the institution of the ad hoc judges governed under article 55 of the Convention. That means that a titular judge which came from the State The Advisory Power of the Ιnter American Court 24 International and European Union legal Matters January, 2016, no.1 party to a case, has the right to hear the case. The article 5 (2) provides that of one of the judges called upon to hear a case should be a national of the States parties. The other State party to a case may appoint of its choice so sit as an ad hoc judge. In the ICJ this figure of judge has a value of advising the Court in the inter–American Court also there is no obligation to appoint an ad hoc judge since the right to do so is expressed in purely discretionary terms. The Court must ensure the impartiality and the interests of the States parties and to provide that none of the titular judges is a national of either of the States parties, then each may appoint an ad hoc judge. There is also a figure of the interim judges, in the cases that it is necessary to be maintaining the quorum of the judges and where a judge is disqualified 40 from hearing a case41. In case that the judge should not be participated in the case the 40Disqualification means under article 19 (1) of the statute that judges may not take part in matters in which they or their families have a direct interest. If judges participated in a national or international courts or in any way to the case should it arise before the inter–American court. The President of the court must be informed from an other judge or individual for the disqualification of an individual/judge which have interest arises in a specific case. If a dispute born between the President of the court and judge, the court is given residual power to decide the issue. The President of the court becoming inquorate, the president should request a meeting of the permanent council of the OAS to appoint an appropriate number of interim judge. 41A judge has also the right to resign from the vest of judge until the court has accepted the resignation. Where a judge becomes incapable of performing his or her functions and does not resign it is open to the court to make a determination of incapacity. The Secretary of the OAS must be informed to allow him to take appropriate action or to invoke the procedures for the election of a titular judge. The Advisory Power of the Ιnter American Court 25 International and European Union legal Matters January, 2016, no.1 President of the Court must request the permanent council 42 to appoint an interim judge. The President, the Vice–President and a third judge, who is designated by the President, compose the Permanent Commission. That body acts as the Court’s bureau or directorate and «assists and advises the President in the exercise of his functions». In making his designation, the President has sought to ensure that at least one member of the Permanent Commission resides in Costa Rica and that both working languages of the Court-Spanish and English-are represented on it. It may not always be easy, however, to achieve both results, and in the most recent designation, preference was given to making at least one English-speaking judge a member of the Commission. Under Article 20 the official language of the Court shall be those of the OAS. The working languages shall be those agreed upon by the Court each year. However, in a specific case, the language of one of the parties may be adopted as a working language, provided as one of the official languages. The Court may authorize any person appearing before it to use his own language if he does not have sufficient knowledge of the working languages. In such circumstances, however, 42The permanent commission is composed from the President, the vice–President and third judge named by this President. The court could also institute ad hoc commissions in special matters and at least one member of the permanent commission resided in Costa Rica and that he has knowledge of the working languages of the court. The Advisory Power of the Ιnter American Court 26 International and European Union legal Matters January, 2016, no.1 the Court shall make the necessary arrangements to ensure that an interpret will be present to translate the testimony into the working languages43. All the type of judges enjoys the immunities and privileges accorded to diplomatic agents under international law 44. The privileges and immunities are to be accorded by the States parties to the Convention but may also be expressly by other member States of the OAS. There is also the agreement on privileges and immunities of the Organization of American States concluded in 1949 and a second between Costa Rica and the Court of 10 September of 1981. The relating articles for the function of immunities and privileges of the Court are concentrated on the article 70 of the Convention and 15 of the statute45. The Secretariat of the Court is headed by the Secretary who is 43Rules of procedure of the Inter-American Court of Human Rights in effect as of January 1, 1997, Inter-American commission of human rights. 44Organization of American States. Resolution on agreement on privileges and immunities and headquarters agreement, in American Journal of International Law, 1989, pp. 255 ss. It is noted: «(...) that the opinion of the inter–American juridical committee examined a number of important and complicated legal issues, and that the member states of the Organization have not been yet formally asked to study that opinion and present their observation thereon (...) that the OAS member states and observer countries wish to have the organization to examine ways in which the current agreements setting forth the status, privileges and immunities of the representatives of member states and observer countries be clarified and/or supplemented so as to ensure the proper and independent functioning of the organization while bearing in mind the sovereign rights of the headquarters State, in accordance with the rules of international law (...)». 45For the articles see appendix. The Advisory Power of the Ιnter American Court 27 International and European Union legal Matters January, 2016, no.1 appointed by the Court for a renewable 5-year term; he may be removed by the Court46. Thus, unlike the Inter-American Commission on Human Rights, whose Executive Secretary is appointed and removable by the Secretary General of the OAS47. The Court has the power to ensure that its chief administrative officer does not have divided loyalties. All other members of the Court’s staff are appointed by the Secretary General of the OAS in consultation with the Secretary of the Court. In practice, the Secretary General has thus far always made the appointments recommended to him by the Secretary of the Court. Moreover, although the staff is subject to the administrative standards of the OAS Secretariat, these may be applied only to the extend that they do not adversely affect «the independence of the Court». The Secretary is set down in article 10 the rules of the Court. These functions demonstrate the central importance of the Secretary to the proper functioning of the Court. Also the Secretary of the Court and the staff of the Secretariat enjoy the immunities and privileges contained in the agreement of privileges and immunities of the Organization of American States. The Secretary of the Court and the judges may take part in the deliberations which normally are in private and remain secret unless it decides to 46Convention, Art., 58. Statute, Art. 14. A. V. THOMAS and A. J. THOMAS, The Organization of American States, Dallas 1963, pp. 46-52. 47Convention, Art. 59. The Advisory Power of the Ιnter American Court 28 International and European Union legal Matters January, 2016, no.1 disclose them. All judicial decisions of the Court must be adopted by the Plenary Court. It does not sit in smaller panels or chambers as does the European Court of Human Rights48, for example. Both its small size and the requirement under article 56 of the Convention that «five judges shall constitute a quorum for the transaction of business by the Court» would seem to rule out the use of chambers. The Convention fails to address the problem that would arise if disqualifications, resignations or the death of a number of judges were to deprive the Court of the required quorum. The Court, however, anticipated this problem by including a provision in the Statute authorizing its President to request that the Permanent Council of the OAS appoint «one or more interim judges who shall serve until such time as they are replaced by elected judges»49. The task of designating interim judges was assigned to the permanent Council because it meets on a regular basis throughout the year, whereas the OAS General Assembly holds one short annual session. The institution of interim or substitute judges, although quite common on the domestic plane is rare in the case of international tribunals. It might well serve to prevent 48See also: European Convention on Human Rights, ETS 5 (1953) Gr. Britain.Ts N° 71 (Cmd. 8969), Art. 43. H. ROBERTSON, Human Rights in Europe, Manchester, The university press, Oceana publications, 1963, 2nd edition, 1977, pp. 202-203. 49Statute, Art. 6 (3), Art. 19 (4), Convention, Art. 55. The Advisory Power of the Ιnter American Court 29 International and European Union legal Matters January, 2016, no.1 serious delays in the work of the Inter-American Court50. Interim judges should be distinguished from ad hoc judges. The later are expressly provided for in the American Convention 51. Besides stipulating that a judge who is a national of a State that is a party to a case before the Court «shall retain his right to hear that case», it declares that if one of the sitting judges is a national of a party to the case, the other State party may designate an ad hoc judge. Both States, furthermore, have the right to name ad hoc judges if none of the elected judges is their national. Since the ad hoc judges must have the same qualifications that the Convention specifies for elected judges, the Court may be deemed to have the power to reject ad hoc judges who do not meet these requirements52. The Court’s Statute assumes that the right to designate ad hoc judges is waivable and provides that the right «shall be 50J. DONNELL, International human rights: a regime analysis, in «International Organization» 1986. L. DRUCKER, Government liability for disappearances. A Landmark ruling by the inter– American court on human rights, in «Stanford Journal of International Law», 1988, pp. 290 ss. T. FARER, Consolidating democracy in Latin America: law, legal institutions and constitutional structure, in «American University Journal of International Law and Policy», 1995, pp. 1297 ss. C. FENWICK, The OAS: The transition from an unwritten to a written constitution, in «American Journal of International Law», 1965, pp. 317 ss. C. FENWICK, The Charter of the OAS as the law of the land, in «American Journal of International Law», 1953, pp. 282 ss. 51Article 52 of the Convention provides that the judges must meet the following qualifications: they must be «jurists of the highest moral authority»; they must have «recognized competence in the field of human rights»; and they must «possess the qualifications required for the exercise of the highest judicial functions» either in the state of their nationality or the state nominating them. C. GROSS, The International Court of Requirements for Enhancing its Role in the International Order, in «American Journal of International Law», 253, pp. 295-299, 1971. 52Statute, Art.10 (4).2. C. FERWICK, The Inter-American regional system, New York, 1963. The Advisory Power of the Ιnter American Court 30 International and European Union legal Matters January, 2016, no.1 considered relinquished» if the State fails to name an ad hoc judge within 30 days following a written request from the President of the Court 53. Before the Court may «hear a case (…) the procedures set forth in Articles 48 to 5054 shall have been completed»55. The procedures referred to are those that govern the disposition by the Commission of cases submitted to it by States or individuals charging violations of the Convention. It is important to say in this connection, that the American Convention makes the right of individual petition mandatory and the interstate complaint optional. That is, a State that ratifies the Convention is deemed, ipso facto, to have accepted the right of «any person on group of persons, or any nongovernmental entity legally recognized in one or more OAS member States», to file a petition with the Commission charging a State party with a violation of the Convention56. However, before one State party may bring such charges against another party, both States must have made a separate declaration recognizing «the competence of the Commission to receive 53Statute of the Inter-American Court on Human Rights, OAS Res. 448 (IX-0/79), OAS Off. Rec. OEA/Ser.P/IX.0.2/80, Vol.1 at 98, Annual Report of the Inter-American Court on Human Rights, OEA/Ser. L/V.III.3 doc.13 corr.1 at 16 (1980) reprinted in Basic Documents to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 133 (1992). 54See: Cantoral Benavides case, judgement of August 18, 2000. 55Convention, Art. 61( 2 ). 56Convention, art. 44. On this subject generally see R. E. NORRIS, Bringing Human Rights petitions before the Inter-American Commission, in «Santa Clara Law Review» 1980, pp. 18-25. The Advisory Power of the Ιnter American Court 31 International and European Union legal Matters January, 2016, no.1 and examine» interstate complaints57. Thus far, only four States: Costa Rica, Jamaica, Peru and Venezuela, have field that declaration. It should also be noted that under the American Convention the right of individual petition, besides being mandatory, does not require the petitioner to be a victim of the violation charged. In particular a petitioner have pursued and exhausted all remedies under domestic law in accordance with generally recognized principles of international law58. On the other hand the petition must be in time, that is written six months of notification of the final judgment of the victim and the subject of the petition must not be pending in another international Court for settlement59. The procedures set forth in Articles 48 to 50 for dealing a complaint that is submitted to the Commission envisage a number of litigation stages. Within a period of three months following the transmittal of the report, the case may be referred to the Court either by the Commission or by the «state concerned»60. 57Convention, Art. 45 (1) and (2). 58C.CERNA, The inter–American commission on human rights: its organisation and examination of petitions and communications, in D. J. HARRIS and S. LIVINGSTONE (ed.), The Inter-American system of human rights, Clarendon press, Oxford, 1998, pp. 65 ss. 59A. G. MOWER, Regional human rights: A comparative study of the West European and inter– American systems, New York, Greenwood Press, 1991. T. BUERGENTHAL, The American and european convention on human rights. Similarities and differences, in «Τhe American University Law Review», 1980, pp. 155 ss. D. L. SHELTON, Judicial review of State action by international court’s, in «Fordham International Law Journal», 1989, pp. 365 ss. 60If the case is not referred to the Court within the above-mentioned period, the Commission The Advisory Power of the Ιnter American Court 32 International and European Union legal Matters January, 2016, no.1 Also, under the article 48, 49, 50 from the Rules of Procedure of the Inter-American Court, the interested party may object to a witness before he testifies. If the Court considers it necessary, it may nevertheless hear, for purposes of information, a person who is not qualified to be heard as a witness. The Court shall assess the value of the testimony and of the objections by the parties. The grounds for disqualification applicable to judges under Article 19 (1) of the Statute shall also apply to expert witness. If the expert witness who has been challenged contests the ground invoked against him, the Court shall rule on the matter. However, when the Court is not in session, the President may, after consultation with the Permanent Commission, order the evidence to be presented. The Court shall be informed thereof and shall rule on the value of the evidence. States may neither institute proceedings against witness or expert witness nor bring illicit pressure to bear on them or on their families on account of declarations or opinions they have delivered before the Court61. On the other hand we must analyse the jurisdiction of the Court. The American Convention on Human Rights has conferred on the interAmerican Court of human rights the right to adjudicatory as well as «may, by the vote of an absolute majority of its members, set forth its opinions and conclusions concerning the questions submitted for its considerations». 61FORST, The evolution of the inter–American court of human rights: reflections of present and former judges, in «Human Rights Quarterly», 1992, pp. 170 ss. The Advisory Power of the Ιnter American Court 33 International and European Union legal Matters January, 2016, no.1 advisory functions62. The communication from the State on the withdrawal of its request for an advisory opinion 63 raised a substantive question concerning the scope and nature of the Court’s advisory jurisdiction which derives from article 64 of the American Convention and is governed by the rules of procedure 64. That jurisdiction «is closely 62See: Compatibility of draft legislation with article 8 (2) (h) of the American convention on human rights, advisory opinion OC–12/91, December 6, 1991, Inter–Am.Ct.H.R. (Ser.A) N.12 (1991). The advisory opinion in particular request presents the following questions: a) The establishment of court of criminal appeal and the proposed amendments fulfil the requirements set out in article 8 (2) (h) concerning the right to appeal the judgement to a higher court; b) If the article 8 of the convention is referred to the term «criminal offence» what rule should be applied with regard to violations of criminal law; c) The compatibility of draft legislation with the convention, on the following articles: article 474. A defendant may file an appeal against: a conviction for a criminal offense, an a equitable or dismissal that imposes a preventive security measure, a ruling disallowing credit for time served, an order that imposes a security measure when it is deemed that the sentence served has not resulted in the rehabilitation of the defendant; article 475: the provided damages are equal to or greater than the amount for which an appeal would be admitted in a civil proceeding as provided by law, ecc; The court has decided that it will not render the advisory opinion requested by the government of Costa Rica. 63See: Interpretation of the meaning of other treaties in art. 63 of the American convention, advisory opinion OC–1/82, I/1 Court H.R. Series A and B n.1 (1982), in «Human Rights Law Journal», 1982, pp. 140 ss. Character and scope of the right to reply or correction recognized in the American convention, advisory opinion OC–7/85, I/A Court H.R. Series A n.7, 1986, in «Human Rights Law Journal», 1986, pp. 240 ss. Compulsory membership in an Association prescribed by law for the practice of Journalism, advisory opinion OC–5/85, I/A Court H.R. Series A no.5, paras. 25 and 26, 1985, in Human Rights Law Journal, 1985, pp. 160 ss. Compatibility of draft legislation with art. 8 (2) of the American convention on human rights, advisory opinion OC–12/91, I/A Court H.R. Series No.12, paras. 26 and 17, 1991, in «Human Rights Law Journal», 1992, pp. 150 ss. R. N. NAVIA (ed.), La corte y el sistema Interamericano de Derechos Humanos, San José, 1994, pp. 455 ss. 64See: Advisory opinion OC–1/82 of September 24, 1982, other Treaties subject to the advisory jurisdiction (art. 64 of American Convention on human rights), requested by Peru. In particular: «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 establish reciprocal relations between states, the fear has been expressed that the exercise of the court’s advisory jurisdiction may weaken its contentious jurisdiction of worse still, (...) that concern has been expressed that the court’s advisory jurisdiction be invoked by The Advisory Power of the Ιnter American Court 34 International and European Union legal Matters January, 2016, no.1 related to the purposes of the convention» 65 and «is intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the inter–American system to carry out the functions assigned to them in this field (…)»66. The contentious jurisdiction of the Court is based on article 62 which read as follows: «A State party may, upon depositing its instrument of ratification or adherence Convention, or at any subsequent time, declare that it recognizes as binding (…) the jurisdiction of the Court on all matters relating the interpretation or application of this convention (…) the jurisdiction of the Court shall comprise all cases concerning the interpretation application of the provisions of this Convention that are submitted to it, provided States parties to the case recognize or have states for the specific purpose of impairing the effectiveness of the proceedings in a case being death with by the Commission «to avoid having to accept the contentious jurisdiction court and the binding character of the court’s decision», to interfering with the proper functioning of the convention and advisory affecting the interests of the victim (...), no provision of the convention may be interpreted as: a) permitting any state party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this convention or to restrict them to a greater extent than is provided for herein; b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any state party or by virtue of another convention to which one of the said states is a party; c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government, or d) excluding or limiting the effect that the American Declaration of the rights and duties of man and other international acts of the same nature have (...)». 65MAHINGA, La contribution de la court interaméricaine de droits de l’ homme à la protection de la personne humaine: premiées tendaces, in «Revue de Droit International et de Droit Comparé», 1992, pp. 44 ss. 66Other treaties subject to the advisory jurisdiction of the court (art. 64 American Convention on human rights), advisory opinion OC–1/82 of September 24, 1982. Series A n.1, para. 25. The Advisory Power of the Ιnter American Court 35 International and European Union legal Matters January, 2016, no.1 recognized such jurisdiction when special declaration pursuant to the preceding paragraphs, or by a special agreement». Under the article 61 (1) «only the States party of Commission shall have the right to submit a case to the Court». And in consequences under the article 63 (2) of the Convention which indicated that: «the cases of extreme gravity and urgency and when necessary to avoid irreparable to persons, the Court shall adopt such provisional measures as it deems pertinent (…) a case not yet submitted to the court, it may act at the request of the Commission»67. Also in the advisory jurisdiction of the Court there is the same thing with the contentious jurisdiction, which in that there is no «parties» involved in the advisory procedure or is any dispute to be settled 68. The scope of the advisory function is «the interpretation of this Convention or of other treaties concerning the protection of human rights in the 67Twenty one states parties have recognized the contentious jurisdiction of the Court: Costa Rica, Peru, Venezuela, Honduras, Ecuador, Argentina, Uruguay, Guatemala, Surinam, Panama, Chile, Nicaragua, Paraguay, Bolivia, El Salvador, Brazil, Mexico, the Dominician Republic and Barbados. 68The advisory opinions of the court in the decade of 1990 are: 1. Advisory opinion OC–11/90 of August 10, 1990. 2. Advisory opinion OC–12/91 of December 6, 1991, compatibility of draft legislation with article 8. 2. h of the American Convention of Human Rights. 3. Advisory opinion OC–13/93 of July 16, 1993, certain attributes of the inter–American commission on human rights, 40, 41, 42, 44, 6, 47, 50 and 51 of the American convention on human rights. 4. Advisory opinion OC–14/94 of November 14, 1997, Reports of the American convention on human rights. 5. Advisory opinion OC–16/99 of October 1, 1999, The right to information on consular assistance in the framework of the Guarantees of the due process of law. The Advisory Power of the Ιnter American Court 36 International and European Union legal Matters January, 2016, no.1 American States»69. The Court observe that the exercise of the advisory opinions is multilateral and not have the nature of litigious, which established in the rules of procedure of the Court in the article 62 (1). The advisor opinion shall be transmitted to all the «member States» which may submit their comments on the request and participate in the public hearing on the matter. On the other hand the advisory opinions of the Court have not the binding character of a judgment in a contentious case. The guiding principle for the Court is the protection of human rights70 in the region and «the State that request an advisory opinion is not the only interested party and that even if it withdraws the request, the withdrawal is not binding on the Court (…) which may continue to process the matter (…) not prejudge the question of admissibility of the request nor, if applicable, of the merits of the advisory opinion»71. 69Α. Α. CANÇADO TRINDADE, La protection des droits économiques, sociaux et culturels: évolution et tendances actuelles, particuliérement à l’ échelle regionale, in «Revue Générale de Droit International Public», 1990, pp. 913 ss. 70CERNA, International law and the protection of human rights in the inter–American system, in «Houston Journal of International Law», 1997, pp. 730 ss. COHEN–JONATHAN, Cour Inter– Americaine ds droits de l’ Homme: L’ Arret Vélasquez, in «Revue Générale de Droit International», 1990, pp. 455 ss. CONNELL–SMITH, The Inter–American system, London, 1966. FROST, The evolution of the inter–Americain court of human rights: reflections on present and former judges, in «Human Rights Quarterly», 1992. GROSS ESPIELL, Le systéme interaméricaine comme régime regional de protection international des droits de l’homme, in «Recuil des Cours», 1975, pp. 1 ss. SANTOSCOY, La Commission interaméricaine des droits de l’homme e le devéloppement de sa compétence par le systéme des pétitions individuelles, Paris, 1995. SCREIBER, The inter–American commission on human rights, Leyden, 1970. 71Order of April 14, 1997 after the request of Chile. The Advisory Power of the Ιnter American Court 37 International and European Union legal Matters January, 2016, no.1 In relation with the admissibility of the advisory opinion, the Court should take in mind the rules of interpretation in conformity with the relevant provisions of the Vienna Convention in the law of Treaties. The object and purpose of the American Convention is the protection of human rights72, so that when the Court is called upon to interpret it, it must do so in such a manner as to give full effect to the system of human rights protection73. 72In the Honduran disappearance case, the court preferred to find that international adjudication in human rights cases was of a sui generis character. It noted that: «(...) 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 them to protect the victims and to provide for the reparation of the damage resulting from the acts or omissions of the responsible state (...)». In this way the court recognizes the state sovereignty and protection of individual rights. In the same cases is discussed the attendibility of the reports discussed from States and delivered in the convention and in the court after such as evidence matters. The court has cited that also the international court of justice in the Military and Paramilitary activities case all the reports which is declared should not be considered as documentary evidence per sé and they could not influenced the public. The court has continued noted that: «the insinuation that persons who for any reason, resort to the inter– American system for the protection of human rights are disloyal to their country is unacceptable and cannot constitute a basis for any penalty or negative consequence (...) ». The remedy available to the victims and their successors in the same case the court has declared that: «(...) reparation of harm brought about by the violation of an international obligation consists in full restitution which includes the restoration of the prior situation, the reparation of the consequences of the violation an indemnification for patrimonial and non–patrimonial damages, including emotional harm (...)». 73See: Advisory opinion OC–2/82 of September 24, 1982, Series A No.2, paras. 19 et. seq.; Restrictions to the death penalty (arts.4 (2) and 4 (4) of the American Convention on human rights; Advisory opinion OC–3/83 of September 8, 1983, Series A No.3, paras.47 et. seq.; Proposed amendments to the naturalization provision of the constitution of Costa Rica, advisory opinion OC–4/84 of January 19, 1984, Series A No.4, paras.20 et seq.; Compulsory membership in an association prescribed by law for the practice of journalism (arts.13 and 29 of the American Convention on human rights, advisory opinion OC–5/85 of November 13, 1985. Series A No.5, paras. 29 et seq.; The world laws in article 30 of the American Convention on human rights, advisory opinion OC–6/86 of May 9, 1986, Series A No.6, paras.1 et seq.; Velàsquez Rodrigeuz The Advisory Power of the Ιnter American Court 38 International and European Union legal Matters January, 2016, no.1 We see a Court power to adjudicate on cases relating to claims that one State party of the Convention has violated the Convention. In this way we have the autonomous recognition of the jurisdiction of the Court from the State party, recognition under an ad hoc declaration which is declared under the article 62 (1) and (2) of the American Convention or after a bilateral agreement. The Court’s contentious jurisdiction covers cases concerning the interpretation and the application of the provisions of the American Convention. It is relatively new also the contentious system of jurisdiction. The Court has not yet the occasion to pronounce this type of jurisdiction relating in a number of rights under the American Convention. Not all the States have accepted the jurisdiction of the Court in contentious cases. This is a problem because is not covered totally the protection that the Court will be offered to the States that binding on the contentious system of the Court. It is also obvious that not all the judges have the same opinion regarding a discussing case. The judgment could not be represent in whole or in part the unanimous opinion of the judges and any judge is entitled to attach to it his case, preliminary objections, judgement of June 26, 1987. Series C No.1, para. 30; Fairen Garbi and Solis Corrales case, preliminary objections, judgement of June 26, 1987. Series C No.2, para.35; Godinez Cruz case, objections, Judgement of June 26, 1987. Series C No.3, para 33, Paniagua Morales et. al. Case, preliminary objections, judgement of January 25, 1996. Series C No.23, para. 40. The Advisory Power of the Ιnter American Court 39 International and European Union legal Matters January, 2016, no.1 dissenting or separate opinion. The cases of disagreements many times were interpreted74 at the request of a party (art. 67). The deliberations of the Court occurs a course of one of its sessions, normally following the one in which the last hearing on the merits and the respective judgment has been delivered shortly afterwards. The judgment on merit, which is the major part of the judgments, in this way it is obligated to give further information or agreement before a decision can take it. In Neria Algeria case (Peru–reperation, 1996) this type of judgment has covered a period of 17 months for the total judgment and taking into account the matter of reparations75. 74The court has interpreted only in two occasions judgements. In the Vélasquez Rodriguez and Godinez Cruz (Honduras–reparations) cases, see in «Human Rights Law Journal», 1990, pp. 212 ss. 75For the cases of reparations see: a) Velàsquez Rodriguez and Godinez Cruz, which was the first contentious cases decided of the court. The victim was a university student who was arrested by members of the Honduran national security service and members of the armed forces. He was taken to a national security service establishment where he was allegedly tortured. In the next days was reported to have been transferred to a military baracks. Nothing it was heard and it is obvious that Honduras has denied that the victim had ever been detained. «The court considered at length the basis for an award of damages, noting that international law requires restitution of the status quo ante where possible and compensation where it is not possible: It is a principle of international law, which jurisprudence has considered even a general concept of law, that every violation of an international obligation which results in harm creates a duty to make adequate reparation. Compensation, on the other hand, is the most usual way of doing so». Factory at Chorzow, jurisdiction, judgement n. 8, 1937 (PCIJ, series A, n.17, 29, reparation for injuries suffered in the service of the United Nations, advisory opinion, ICJ reports 1949, 184. b) Aloeboetoe case, cases relating for the kidnapping and deaths of seven young men of the Saramaca tribe. In particular the measures for the victims sought: a) an apology from the President of Suriname and the Congress; b) Publication of the court’s decision; c) return of the bodies of six victims to the families; d) the naming of a park or square or prominent street after the families; e) investigation and punishment of the responsible the Saramaca tribe; f) investigation and punishment of the responsible persons. «The victims were also found to have suffered moral damages due to abuse by an armed band that deprived of their liberty and later The Advisory Power of the Ιnter American Court 40 International and European Union legal Matters January, 2016, no.1 3.1.The advisory power of the Court is spelled out in Article 64 of the Convention, which reads as follows: a) The member States of the Organization may consult the Court regarding the interpretation of this Convention or of the 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 killed them: the beatings received, the pain of knowing they were condemned to die for no reason whatsover, the torture of having to dig their own graves are all part of the moral damages suffered by the victims. In addition, the person who did not die outright had to bear the pain of his wounds infested by maggots and of seeing the bodies of his companions be devoured by vultures»; c) Gangaram Panday cases. Suriname violated the victim’s rights to life, humane treatment, personal liberty and judicial protection. The court approach undermines respect for the convention. «Since Suriname» responsibility has been inferred, the court decides to set a nominal amount as compensation. It is also based on the fact that Suriname’s responsibility has been inferred, the court considers that it must dismiss the request for an award of costs»; d) El Amparo cases. Cases that regards to make reparations and to pay fair compensation to the surviving victims and next of kin, after the government of Venezuela accepted responsibility for the deaths of fourteen fisherman and violations of the right of two survivors. The treatment of non–pecuniary reparations followed the European court practice. Investigation and punishment which again referred to as continuing obligations. See for these case: «Human Rights Law Journal», 1995, pp. 350 ss. e) Neria Alegra case against Peru. The commission asked hat the court order Peru to investigate, identify and punish the perpetrators. The court has declared the responsibility for violations of the human rights from the part of Peru and in particular the state of Peru must paid the expenditures that the victim’s next of kin may have incurred during the national proceedings as well as fair compensation. It is obvious that the measures of reparations is not included in the power to order only pecuniary measures. The non–pecuniary measures serve many times to reinforce the validity of the obligation to the responsible state to acknowledge responsibility. It is not also created a fund to pay victims of gross and systematic violations of human rights and abuses. The Advisory Power of the Ιnter American Court 41 International and European Union legal Matters January, 2016, no.1 Protocol of Buenos Aires, may in like manner consult the Court; b) 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 right to request advisory opinions from the Court under Article 64 (1) is conferred on «member States of the Organization of American States»76 as well as, «within their spheres of competence» on «the organs listed in Chapter X» of the OAS Charter 77. The Convention, in its various provisions, distinguishes between «member States» of the 76VENTURA NOBLES, La funciòn consultiva de la corte interamerrica de derechos umanos: naturaleza y principios, Madrid 1989. 77The first advisory opinion from the court was asked from Uruguay and Argentina in relation to the procedure of application to complaints filed with the commission. If the commission «is competent to assess an offer an opinion on the fairthly of domestic legislation adopted pursuant to the provisions of the constitution, insofar as the reasonableness, advisability or authenticity of such legislation is concerned (...)». The court responded that the status was adopted according non exclusively based to constitutional requirements, emergent from the protection of human rights. The second question was based on a right to individual petition which has been declared inadmissible form the beginning. The court declared that the commission should not exercise its general attributed, which empower it to consideration of the complaint: «those of cooperation in the response to requests for information and of legal debate on the question whether the declaration or the connection has been infringed». Also it was difficult the report between the court and the commission in relation on the nature of the court’s role in respect of article 61 (2). The commission argued that the court did not have jurisdiction to review whether the rules governing the procedure before the commission had been respected, particularly those related to the admissibility of a case. On the other hand the court considered that it was empowered to rule upon all matters relating to the convention, including the proper completion of the procedures before the commission in articles 48 and 50 of the convention, upon which the court’s jurisdiction in a case depends. The court has reviewed the commission’s decision on the exhaustion of remedies when a challenge as presented by the state parties during the preliminary phase of a case. The Advisory Power of the Ιnter American Court 42 International and European Union legal Matters January, 2016, no.1 Organization and «States parties» to the Convention 78. It is obviously, therefore, that the right of States to seek advisory opinions under Article 64 (1) extends to all OAS member States, whether or not they have ratified the Convention and that it is not restricted by the jurisdictional requirement applicable to OAS organs, which limits the latter to matters falling «within their spheres of competence»79. The Court does not interpret the term/concept «Laws» in a strictly formal or in a legally neutral way. In the contrary, the notion «laws» so as to give a sui generis context, autonomous of the meaning that this term may have in the legal systems. The opinion of the Court must interpret under the mean of law, which are neither conductive to the protection of human rights and these rights can be effectively enjoined, are not be considered as «laws» for the purposes of art. 30. Also the term «laws» it could be interpreted according to the domestic constitutional procedure. If a general law has been adopted by democratically elected parliaments it would not be compatible with article 30, unless the formal conditions laid down in the relevant national constitutions for the adoption of such laws have been complied with80. 78Convention Art.41( b),43 and 62. 79«Other Treaties» Subject to the Consultative Jurisdiction of the Court (Art.64 American Convention on Human Rights), Advisory Opinion N° OC I/82 in Sept. 24, 1982. 80Article 24 provides that «all persons are equal before the law» and that, consequently, «they The Advisory Power of the Ιnter American Court 43 International and European Union legal Matters January, 2016, no.1 The different, between advisory jurisdiction and contentious jurisdiction, from the international tribunals has often been the subject of heated debate81. Many times the States have taken reservations and at times even opposition to the exercise of the advisory jurisdiction in certain specific cases on the ground that it served as a method for are entitled, without discrimination or equal protection of the law». The court has explained the notion of equality in advisory opinion: I–A court HR, proposed amendments to the naturalization provision to the constitution of Costa Rica, advisory opinion OC–4/8 of January 19, 1988, Series A, n. 4, p. 80, para. 7 at p. 82. In particular «the notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equality irreconcilable with that notion to characterize a group as inferior and threat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congeners character (...) there would be no discrimination in differences in treatment of individuals by a state when the classification selected are based of substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they must not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of human–kind (...) within the sovereign power of Costa Rica to decide what standards should determine the granting or denial of nationality(...), and to establish, certain reasonable differentiations based on factual differences which, viewed objectively, recognize that some applicants have a closer affinity that others to Costa Rica’s value system and interests (...)». P. C. LAUREN, Power and prejudice. The politics and diplomacy of racial discrimination, Boulder/London, Westview press, 1988, pp. 388. C. MEDINA QUIROGA, The battle of human rights. Gross, systematic violations and the inter–American system, Utrecht/Dordrecht, Martinus Nijhoff, Netherlands, 1988, pp. 369 ss. N. DEMBITZ, Racial discrimination and the military judgment: the supreme court’s Korematsu and Endo decisions, in «Columbia Law Review», 1945, pp. 175 ss. 81The court noted that states in general had opposed the application of advisory jurisdiction in a number of cases before the ICJ since they saw the principle that the consent of states party to a dispute was required before they could become subject to international adjudication. Article 64 of the American convention does not exclude any matter relating to the protection of human rights in the American states. Also the Court has the power to determine the circumstances which is necessary for a ruling for justifying or rejecting the acceptance of the request. The court has declared that: «(...) must have compelling reasons founded in the conviction that the The Advisory Power of the Ιnter American Court 44 International and European Union legal Matters January, 2016, no.1 evading the application of the principle that requires the consent of the States parties to a legal dispute before judicial proceedings to adjudicate it. For example in an analogous case the International Court of Justice (ICJ) decided to enter the opinions notwithstanding the objections 82. Another problem is the relation between the advisory opinions and the protection of human rights. The main principle of the Court that many times we will write is the protection of human rights in the region of Latin America. And in particular the dignity and the freedoms of rights rather than to establish reciprocal relations between States. Under this spirit there is a problem of the «weakness» of the contentious jurisdiction of the Court and perhaps the power to advisory jurisdiction, which changing the request exceeds the limits of its advisory jurisdiction under the convention before it may refrain from complying with a request for an advisory opinion (...)». Costa Rica, for example, has requested from the court that certain amendments which affected the appeal structure in criminal cases which will be compatible with article 8 of the American convention. Article 8 (2) permit to a persons the right to appeal to a higher court. There is a problem with a Costa Rica’s criminal appeal structure which had resulted in the submission of a number of applicants by Costa Rican citizens to the commission alleging breaches of the convention. The commission should submit the case to the court and the court nonetheless held that, declaring that: «the question presented by Costa Rica could produce, under the guise of an advisory opinion, a destination of contentious matters not yet referred to the court, without providing the victims with the opportunity to participate on the proceedings. Such a result would distort the convention system (...)». With this declaration the Court underline the significance of the commission which should play different roles in contentious and advisory proceedings. Represents the characteristics of the individual victim under the main interests of the inter– American institutions. 82Cfr. South–West Africa, International status of 1950, ICJ. 128. Certain expenses of the United Nations, 1962 ICJ. 151. Security Council resolution 276 (1970), 1971 ICJ.16. The Advisory Power of the Ιnter American Court 45 International and European Union legal Matters January, 2016, no.1 system of protection provided for in the Convention to the detriment of the victim. 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 decision (…)» 83. In other Treaties the Court had declared: «(…) the advisory jurisdiction of the court is closely related to the purpose of the Convention, this jurisdiction is intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the inter-American system to carry out the functions assigned to them in this field. It is obvious that any request for an advisory opinion which has another purpose would weaken the system established by the Convention and would distort the advisory jurisdiction of the Court (…)». In this way the advisory opinion of the countries related with the purposes of the Convention, thus to assist the American States and in general all the region to participating in international legal acts, obligations and to assist the different organs of the inter-American system to carry out the functions assigned to them in this field of the international protection of human rights. But we must call our 83C. DUNSHEE DE ABRANCHES, La corte Interamericana de derechos humanos, in «La convenciòn Americana de derechos humanos», OEA, 1980. The Advisory Power of the Ιnter American Court 46 International and European Union legal Matters January, 2016, no.1 attention that the Convention could not be delimit the full scope of the Court’s advisory jurisdiction. There is another point of difference from the European Convention, which in article 1 (2) has expressly excludes certain subjects in relation to this matter. In identifying the organs that have standing to request advisory opinions, the Convention refers to chapter X of the OAS Charter. Chapter X consists of the provision, Article 51. It lists the following organs: the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, the Councils84, the Inter-American Juridical Committee, the Inter-American Commission on Human Rights, the General Secretariat, the Specialized Conferences and the specialized organizations. The Specialized Conferences are intergovernmental meetings convened by the OAS «to deal with special technical matters or to develop specific aspects of inter-american cooperation» 85. These conferences are not permanent entities, but rather meetings that are 84The Permanent Council of the OAS, the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture. E. JIMENEZ DE ARECHAGA, L’èvolution rècente du règionalisme interamèricain, in Regionalism et universalisme dans le droit international contemporain, Paris 1977. L. LE BLANC, The Economic, Social and Cultural Rights Protocol to the American Convention and its Background, in «Netherlands Quarterly of Human Rights», 1992, pp. 130 ss. 85OAS Charter art. 128. T. BUERGENTHAL R. NORRIS D. SCELTON, Protecting human rights in the Americas selected problems, International Institute of Human Rights, Strasbourg. KehlStrasbourg-Arlington, N. D. Engel, 1982. V. McCOMIE, Practical Considerations on Human Rights within the OAS, in «American Journal of International Law and Policy», 1989. The Advisory Power of the Ιnter American Court 47 International and European Union legal Matters January, 2016, no.1 convened from time to time86. The specialized organizations, by contrast, are permanent institutions, they are defined in Article 130 of the OAS Charter as «inter-governmental organizations established by multilateral agreements and having specific functions with respect to technical matters of common interest to the American States» 87. The Court has the power to advisory jurisdiction not only within the framework of the Convention but also within the system as whole. This conclusion finds support, ratione materiae, in the fact that the Convention confers on the court jurisdiction to render advisory opinions interpreting international Treaties other than the connection itself and, ratione personae, in the further fact that the right to seek an opinion extends not only to all organs mentioned in chapter X of the 86We note also the inter–American convention on torture which is agreed between the States parties to take measures and to ensure that in the training of police officers and to her public officials responsible for the custody of persons and is prohibited the use of torture in detention or arrest. The existence of prohibition of torture in article 5 of the American convention on human rights the inter–American convention on torture has declared that «it is insufficient to meet the wider demands of the prevention of torture». The convention against torture has stated to take effective legislative, administrative, judicial or other measures to prevent and punish torture. In particular the article 6 (2) declares: «(...) States parties are to make acts of torture punishable by severe penalties that take into account their serious nature (...)». The convention has not established a special supervisory institution. The main organ of supervisor is the inter–American convention on human rights. Also there is no article in the convention on torture which declares the position against the death penalty. See: Effect of reservations, paras. 23 and 25. For further confirmation of this ruling see restrictions to the death penalty, para. 60. Advisory opinion OC–3/83 of September, 1983. Restrictions to the death penalty, series A, no. 3, 1984, in «International Legal Materials», 1984. 87MINKER, Central American integration. Evolution, experience and perspective, in «German Yearbook of International Law», 1989, pp. 195 ss. The Advisory Power of the Ιnter American Court 48 International and European Union legal Matters January, 2016, no.1 OAS charter, but also to all OAS member States, whether or not they are parties to the Convention. Six organizations have this Status at this time: the Inter-American Commission of women88, the Pan American Institute of Geography and History, the Inter-American Indian Institute and the Inter-American Institute for Cooperation on Agriculture 89. 88It was discussed that the institution of the inter-American Commission on women has diminish the role and the power of the Commission to protect the human rights of the women’s. On the first hand the inter-American Commission has declared that will recognize the civil and political right for women in the area of Latin America and as a consequence the objective advancement of the situation of the women in the region; on the other hand the women commission as an intergovernmental organ has not the same position with the OAS commission which is represented from experts of the region countries. The main scope of the Commission was the physician and psychological violence against women. Documented violence against women perpetrated by agents of the State appears in the 1995 commission’s report on Haiti. The cited report underline that the women’s are victims of sexual violence, indifferent of the age and the condition of life, pregnant women under rape which take place in front of children or other family members. The women of Haiti rarely reported rape or violence in the house lieu or other forms of torture, because often enough the actors and those investigating the case were the same persons. An important path of the commission is the article 12, which grants any person group of persons or non-governmental organisations the right to complain before the inter-American Commission about violation of the obligations of states contained in article 7. The Convention did not state clearly the role of the inter-American Court of human rights with regard to these complains, thereby limiting the possibility of the Court to pronounce on these cases as to those which are lodged against states parties to the American convention on human rights. For example the article 11 of the convention on violence against women grants states parties thereto and the inter-American Commission on women the right to request the interAmerican Court an advisory opinion on the interpretation of the Convention. In this way in the examination of individual complaints the commission has done much to advance the plight of women and now it is for women to turn to the commission and give that organ the opportunity to develop the interpretation of the rights under the protection which is offered from the OAS organs. See: The inter-American convention on the prevention punishment and eradication of violence against commission on women, on 19 April 1994, text in OEA/Ser.P, AG/doc.3090/94, 10 May 1994, April 1998. SEMINARA, Les effets des arrêts de la Cour interamèricaine des droits de l’homme, Bruylant, 2009. 89For a description of these entities, see: The Inter-American System: Treaties, Conventions & other Documents from the OAS General Secretariat, pp. 1-107. See also: A. DE GUTTRY, Il nuovo The Advisory Power of the Ιnter American Court 49 International and European Union legal Matters January, 2016, no.1 Organs may only seek advisory opinions «within their spheres of competence». In its opinion on The Effect of Reservations, the Court interpreted this phrase to require a showing by the petitioning organ of a «legitimate institutional interest» in the questions posed in the request90. The existence of this interest is to be deduced from the legal instruments and other legal norms applicable to the particular organ. The adoption of a domestic law in breach of a State’s obligations under the Convention, resulting in State’s international responsibility 91. This opinion signifies that the international responsibility take into consideration not only the State that hat committed, but also the individual officials who has committed an act, too. It is also without answer the problem that individual responsibility arises on the part of State officials or agents for violations of non-derogable Convention rights that not enters to international crimes. In particular the article Statuto della Corte centroamericana di giustizia, in Studi di Antonio Filippo Panzera, vol. 1, Diritto internazionale, Bari 1995, pp. 349-366. R. L. BARSH, The IX Inter-American Indian Congress, in «American Journal of International Law», 1986, pp. 683 ss. 90The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion No OC-2/83 of Sept.24, 1982. See also: L. R. SCEMAN, The Inter-American Commission on Human Rights, in «American Journal of International Law», 1965, pp. 335 ss. 91See: International responsibility for the promulgation and enforcement of laws in violation of the convention (arts.1 and 2 of the American Convention on human rights), Advisory opinion OC–14/94, December 9, 1994, Inter–Am.Ct.H.R. (ser.A), n.14, 1994. «(...) International obligations and the responsibilities arising from the breach thereof are another matter. Pursuant to international law, all obligations imposed by its must be fulfilled in good faith; domestic law may not be invoke to justify non fulfillment. These rules may be deemed to be general principles of law and have been applied by the permanent Court of international justice and the international court of justice even in cases involving constitutional provisions (...)». The Advisory Power of the Ιnter American Court 50 International and European Union legal Matters January, 2016, no.1 64 (1) is under the Court practice the basis for the American States in fulfilling their various human rights obligations 92. The nature of human rights militated against a strict distinction between regionalism and universalism make also the distinction between Treaties on this basis. OAS is a regionalism organization with characteristics of universal organization, because works in a vast region, which the protection of human rights is a difficult theme and the support of the inter-American system is necessary. Under this view the Court many times has referred to article 29 (b) of the Convention which makes clear that the Convention must not be interpreted to restrict the enjoyment of rights or freedoms originating from other Treaties to which States are party. This «autonomous» characterization is declared from the Court, which has said: the function that article 64 of the Convention confers on the Court is an inherent part of the protective system established by the Convention. The Court is of the view, therefore, that «to exclude from is advisory jurisdiction international human rights treaties that are 92D. FOX, The IACHR finds US in violation, in «American Journal of International Law», 1988, pp. 602 ss. L. FROST, The evolution of the inter–American court of human rights. Reflections on present and former judges, in «Human Rights Quarterly», 1992, pp. 170 ss. GARCIA BAUER, The observance of human rights and the structure of the system for their protection in the western hemisphere, in «American University Law Review», 1980, pp. 10 ss. H. GROSS ESPIELL, Contentious proceedings before the inter–American court of human rights, in «Emory Journal of International Dispute Resolution», 1987, pp. 180 ss. C. GROSSMAN, Proposals to strengthen the inter–American system of protection of human rights, in «German Yearbook of International Law», 1989, pp. 265 ss. The Advisory Power of the Ιnter American Court 51 International and European Union legal Matters January, 2016, no.1 binding on American States would weaken the full guarantee of the rights proclaimed in those treaties and, in turn, conflict with the rules enunciated in article 29 (b) of the Convention (…)». There is no an erroneous interpretation of a regionalism point of view by the standard procedure of the protection of human rights in the American system region93. It is necessary to the Court to exercise jurisdiction over interpretation of many Treaties offering in this way the challenge to the Commissions to interpreter better documents with binding or not character, in relation to the protection of human rights 94. «While it is initially for each organ to decide whether the request falls within its sphere of competence, the question is, ultimately, one for this 93Judge Buergenthal has declared that: «(...) human rights treaties may constitute the appropriate domestic law for a number of states which possess constitutions (...)». The court in relation to the Costa Rica advisory opinion in relation of the acquisition of nationality by naturalization and the fear that could be violated the article 17, 20 and 24 of the convention if will entered into force, the court has declared: «(...) an agreement speaks of domestic laws without in any way qualifying that phrase, either expressly or by virtue of its context, the reference must be deemed to be to all national legislation and legal norms of whatsover nature including provisions for the national constitution (...) I suggest that article 64 (2) might be used by national tribunals which might be require to decide questions involving interpretation of either the convention or human rights treaties to which the state was party (...)». In the same advisory opinion the court noted: «that the committee was not one of the governmental entitled empowered to speak for Costa Rica on the international plane and that it only became seized of the issue when the Costa Rica Minister of Foreign Affairs formally filed the request for an opinion (...)». cfr. LIXINSKI, Treaty interpretation by the inter-American Court of human rights. Expansionism at the service of the unity of international law, in “European Journal of International law”, 2010, pp. 585 ss. Cfr. Advisory opinion of January 19, 1984, N.OC–4/84, Proposed amendments to the naturalization provisions of the political constitution of Costa Rica, Series A, n. 4, 1984, in «Human Rights Law Journal», pp. 161 ss. 94Advisory opinion OC–2/82 of September 2, 1982, entry into force of the American convention for a state ratifying or adhering with a reservation, series A, n. 2 (1983), in «International Legal Materials» and in «Human Rights Law Journal», pp. 153 ss. The Advisory Power of the Ιnter American Court 52 International and European Union legal Matters January, 2016, no.1 Court to determinate by reference to the OAS Charter and the constitutive instrument and legal practice of the particular organ». The requirement will not present significant problems for organs such as the OAS General Assembly and the Human Rights Commission, which have broad powers relating to the promotion and enforcement of human rights. Thus, the Court has already emphasized that: because, of the extensive powers that the OAS Charter, the American Convention and the Commission’s Statute confer on it, the Commission, «unlike some other OAS organs, (…) enjoys, as a practical matter, an absolute right to request advisory opinions within the framework of Article 64 (1) of the Convention»95. The same reasoning to doubt applies to the General Assembly, the «supreme organ» of the OAS, which has plenary powers to determinate the Organization’s actions and policies96. To date, such requests have come only from the Inter-American Human Rights Commission. But since other organs also deal with human rights matters on a more or less regular basis, in due course they, too, will no doubt begin to file requests for advisory opinions97. The first candidate could be the Inter95Restrictions to the Death Penalty (Arts 4 (2) and 4 (4) American Convention on Human Rights, Advisory Opinion N° OC-3/83 of Sept. 8, 1983. See also: C. CERNA, US Death Penalty tested before the Inter-American Commission on Human Rights, in «Netherlands Quarterly of Human Rights», 1992, pp. 135 ss. 96OAS Charter arts. 52-58. 97Advisory opinion OC–5/85 of November 13, 1985. Compulsory membership in an association The Advisory Power of the Ιnter American Court 53 International and European Union legal Matters January, 2016, no.1 American Commission of Women whose activities include efforts to promote the human rights guaranteed by United Nations, International Labour Organization and Organization of American States Treaties of special concern to women98. Under the Chapter IV of the InterAmerican Convention on the prevention. Punishment and eradication prescribed by law for the practice of journalism (arts. 13 and 29 American convention on human rights), requested by the Government of Costa Rica. The court in this case has observed that pursuant to article 25 of law n. 4420. The law cited authorizes individuals to engage in the remunerated practice of journalism only if they are members of the association. It is also violated convention because it unduly limits the right of the public at large receive information from any source without interference. Thus the Court has decided that the cited law is incompatible with article 13 of the American convention on human rights in that it prevents certain persons for joining the association of journalists and denies the full use of the mass media. Also there was separate opinions from judges, like the opinion of judge Nieto Navia, which declared that: «law n.4420, consequently, is not limited to protecting the right of association but rather to making it compulsory, thus violating the freedom. Any person who practices journalism without belonging association illegally practices a profession and is subject to the criminal sanctions (Inter–American commission on human rights resolution n.17/84 case 9178 (Costa Rica) OEA/Ser.L/V/II.63, 15 October 2, 1984). On the other hand a person who does be a legal privilege that is denied to everyone else, as the opinion of Court has stated so well (...)». On the other hand the opinion of judge Màximo Cisneros is stated that: «(...) I should emphasize that, to my way of thinking the advisory opinion in the terms adopted in its first operative paragraph leaves the discussion open so that the provisions that regulate the joining together of journalists a be amended in such a way that the incompatibilities have been pointed out disappear, thus correcting the legal difficulties believe that in that way, although the change might be substantial their adaptation might appear to be extremely difficult, if it is achieve the cause of human rights and the stability of democratic institute which, at least in the majority of Latin countries, include association journalists (...)». Judge Rodolfo E. Piza has declared that: «(...) the compulsory licensing of journalists be analysed not only on relation with those restrictions lato sensu sources of the subsequent imposition of liability but also in so far might imply, at the same time, a true restitcion stricto sensu preventive condition for the exercise itself of freedom of expression (...) the court pointed out those differences insisted on the need to distinguish between the restrictions authorities by article 13 (2) which can only be established in the form of the subsequent imposition of liability (...) if it is true that those provisions do not specify the meaning of the worlds law and right, the application universally recognized general principles shared by democratic nations and all states of law permits the information that it concerns may strictly reserved to the formal law, emanating from a The Advisory Power of the Ιnter American Court 54 International and European Union legal Matters January, 2016, no.1 of violence against women speaks for the right to the women to may request of the Inter-American Court of Human Rights advisory opinions on the interpretation of this Convention 99. Article 64 (1) extends to the Court’s advisory jurisdiction to the interpretation of the «Convention or (…) other Treaties concerning to the protection of human rights in the American States». In short, the Treaty need not be one that was adopted within the Inter-American system or a Treaty to which only American States may be parties. It may be bilateral or multilateral, and it needs not be a human rights Treaty as such, provided the provisions to be interpreted in relation to the protection of human rights 100. This holding is probably narrower that it appears at first glance. After concluding that there was no valid reason, in principle, to distinguish between regional and international human rights Treaties, the Court emphasized that its power to comply with a request to interpret these instruments was discretionary. Whether it would exercise the power democratic parliament with all of the guarantees implied thereby, because if anything definitive in this area it is that the regime of basic human and freedoms is subject to the reserve of the law (...)». 98QUINTANA, Recognition of women’s rights before the inter-American court of human rights, in Harvard human rights journal, 2008, pp. 302. 99OAS/Ser.L.V/II.92 doc.31 rev.3 May 3 1996, Inter-American Convention on the prevention, Punishment and eradication of violence against women «Convention of Belem Do Para», Chapter IV., Inter-American mechanisms of protection, Article 11. 100Commission Statute, Arts.18 and 20. D. FOX, The IACH Finds US on violation, in «American Journal of International Law», 1988, pp. 601 ss. J. GONZALES CAMPOS, La protecciòn los derechos humanos en las Naciones Unidas, Madrid 1965 , pp . 112-117. The Advisory Power of the Ιnter American Court 55 International and European Union legal Matters January, 2016, no.1 depended upon various factors related to the purposes of its advisory jurisdiction. «This jurisdiction», the Court declared, «is intended to assist the American States in fulfilling the international human rights obligations and to assist the different organs of the Inter-American system to carry out the functions assigned to them in this field» 101. Consequently, «any request for an advisory opinion which has another purpose would weaken the system established by the Convention and would distort the advisory jurisdiction of the Court». In its view, Article 64 (1) of the Convention permits the Court to interpret any international Treaties affecting the protection of human rights in an American State102. This might include, for example, the 101Advisory opinion OC–9/87 of October 6, 1987. Judicial guarantees in states of emergency (arts. 27 (2), 25 and 8 American convention on human rights), requested by the Government of Uruguay. «(...) the essential juridical guarantees which are not subject suspension, include those judicial procedures inherent to repressive democracy as a form of government (art. 29), provided for laws of the states parties as suitable for guaranteeing (...) of the rights referred to in article 27 (2) of the convention and suppression or restriction entails the lack of protection (...)». 102Advisory opinion OC–10/90 July, 1989, 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, requested by the government of the Republic of Colombia. «(...) it is evident that the declaration of Bogotà does not created a contractual juridical obligation, but it is also clear that it demonstrates a well–defined orientation toward the international protection of the fundamental rights of the human person (...) the evolution of the here relevant «inter– American law» mirror the regional level the developments in contemporary international and especially in human rights law, which distinguished that law for classical international law to a significant extent. That is the case example, with the duly to respect certain essential human rights is today considered to be an erga omnes obligation (Barcelona traction, light and power company, limited, second phase judgement, ICJ Reports 1970, p. 3) (...)». In its decision the court has declared that article 64 (1) of the American convention authorizes the Court to request of a member state of the OAS or any duly qualified court organ, to render advisory opinions interpreting the American declaration of the rights and duties of man, provided that in doing so The Advisory Power of the Ιnter American Court 56 International and European Union legal Matters January, 2016, no.1 human rights provisions of the United Nations Charter of the Geneva Conventions103. The answer of the question whether the Court will exercise its power in a specific case will depend upon the purposes for which the interpretation is sought and the consequences it might have on States or organs outside the Inter-American system. If this analysis is sound, the Court can be expected to be more reluctant, for example, to comply with requests for advisory opinions seeking the interpretation of United Nations Treaties, particularly if they have their own enforcement machinery, than it would be to interpret an OAS human rights Treaty104. It is equally clear, however, that in a proper case, the the court acting under the spirit of the protection of human rights in the American states. 103The four Geneva Conventions, 75 UNTS 31, 85, 135 and 287, deal with the following subjects: the Amelioration of Conditions of the Wounded and Sick in Armed Forces in the Field; the Amelioration of the Conditions of Wounded, Sick and Shipwrecked members of the Armed Forces at sea; the Treatment of Prisoners of war, and the protection of Civilian persons in Time of War. The four Conventions were opened for signature on Aug.12, 1949 and entered into force on Oct. 21, 1950. See also: T. BUERGENTHAL, The Inter-American Court of Human Rights, in «American Journal of International Law», 1982, pp. 231 ss. 104See also the advisory opinion requested by the governments of the Republic of Argentina and the oriental Republic of Uruguay. The advisory opinion has regarded the articles 40 and 42. The court should justify his opinion with other related communications alleging the violation of the rights protected by the articles 23, 24, 25 of the convention. The court has noted: «the advisory jurisdiction of the court is closely related to the purposes of the convention. This jurisdiction is intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the inter–American system to carry out the functions assigned to them in this field (...)». On the other hand the commission has the same powers that it must have or confronting any to her type of violation and the reference of domestic legislation «adopted pursuant to the provisions of the constitution». It is important to underline that a law violations in international obligations assumed by the States by virtue of a treaty in determine for the work of commission, for doing upon examination of the communications of the petitions that received and concerning the violations of human rights and freedoms. The court has decided that: «within the term of the attributes granted it by articles 41 and 42 of the convention, the commission is competent to find any norm of the The Advisory Power of the Ιnter American Court 57 International and European Union legal Matters January, 2016, no.1 Court has the power and would not refuse to interpret a United Nations Treaty or other universal Treaty, especially if it was thought that the opinion might help an American State to comply with its human rights obligations or an OAS organ to discharge its functions. It is used the work «reasonableness» many times in the Court’s opinions105 that implies a value judgment, conformity to the principles of common sense. It is also used in reference in the lieu of the interpretation of the Treaties the same term, that signifies: proportionate and equitable in opposition to unjust, absurd and arbitrary. In the same way is used the term «authenticity» which have the juridical meaning of true, of sense of authority to attest documents and to the context of the requests. Also the Commission has not used the work «address» when recommends a petition to the Court, because prefers expressions like recommendations, conclusions, to formulate opinions, ecc., based on the spirit of exercising its powers pursuant to article 41 of the Convention. The requirements of admissibility of internal law of a state party to be in violation of the obligations the latter has assumed upon ratifying or adhering to it, but it is not competent to decide whether the norm contradicts the internal juridical over of that state (...) articles 50 and 52 of the convention provide for two separate reports, whose content may be similar, and for the first report may not be published. The second report may be published of the commission so decides by absolute majority vote upon the expiration of the time period granted the State to adopt adequate measures». 105Certain attributes of the inter–American commission on human rights (Arts. 41, 42, 44, 46, 50 and 51 of the American convention on human rights advisory opinion OC–13/93, July 16, 1993, Inter–Am.Ct.H.R. (Ser.A) n. 13, 1993. The Advisory Power of the Ιnter American Court 58 International and European Union legal Matters January, 2016, no.1 petition are related, obviously to juridical certainty in the internal order as well as in the international. The States and the organs of the Convention should comply in the provisions which regulate the procedure and the collaboration between also the other member of the Organization of American States106. The General Assembly having seen the report of the General Secretariat on the implementation of resolution AG/RES 1536 (XXVIIIO/98), «Cooperation between the Organization of American States and the United Nations System», resolves: to express to the Secretary General on the organization States its satisfaction with the activities carried out jointly by the two General Secretaries under the OAS/UN Cooperation Agreement: to express its satisfaction with the exchanges between the two organizations on subjects such as the strengthening and modernization of the OAS and hemispheric security 107, and with the joint activities of the Secretary General and the United Nations in the areas of the Inter-American Council for Integral Development (…), the 106C. HARRIS, Advisory jurisdiction: «Other treaties» subject to the consultative jurisdiction of the court, in «American Journal of International Law», 1983, pp. 639 ss. L. LE BLANC, The economic, social and cultural rights protocol to the American convention and is background, in «Netherlands Quarterly of Human Rights», 1992, pp. 130 ss. R. NORRIS, The new statute of the inter–American Commission on human rights, in «Human Rights Law Journal», 1980, pp. 380 ss. J. M. PASQUALUCCI., The whole truth and nothing but the truth: Truth commission, impunity and the inter–American human rights system, in «Boston University International Law Journal», 1994, pp. 320 ss. 107SCHEMAN, Admission of states to the Organization of American States, in «American Journal of International Law», 1964, pp. 970 ss. The Advisory Power of the Ιnter American Court 59 International and European Union legal Matters January, 2016, no.1 Court of the Inter-American organization (…) and the Inter-American Children’s Institute 108. The additional Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights, under the Article 19 speaks for the «means of protection» 109. The States parties to this Protocol undertake to submit periodic reports on the progressive measures they have taken to ensure due respect for the rights set forth in this Protocol110. All reports shall be submitted to the Secretary General of the OAS, who shall transmit them to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture so that they may examine them in accordance with the provisions of this article. Any instance in which the rights established in paragraph a) of article 8 and in Article 13 are violated by action directly attributable to a State party to this Protocol may give rise, through participation of the Inter-American Court of Human Rights, to application of the system of individual petitions 111 108OEA/Ser.P AG/RES.1639 ( XXIX/99), 7 June 1999. 109M. CRAVEN, The protection of economic, social and cultural rights under the inter– American system of human rights, in D. J. HARIS and S. LIVINGSTONE (ed.), The inter–American system of human rights, Clarendon press, Oxford, 1998, pp. 290 ss. 110Cfr. Court IDH, 10 October 2011. 111Article 4 provides that could lodge petition any person, a group of person, any non– governmental organization (ONG) legally recognized in one or more member States of the OAS. Also article 46 of the convention and articles 33 to 39 to the commission’s regulations stipulate that in order to be admitted a petition must satisfy the following criteria: «domestic remedies must have been exhausted (the same procedure in the European Convention of Human Rights) The Advisory Power of the Ιnter American Court 60 International and European Union legal Matters January, 2016, no.1 governed by article 44 through 51 and 61 through 69 of the American Convention on Human Rights 112 . Between the scopes of the Commission and in especially the system of the OAS organization is the empowerment of the petitions that allege to the violations of human rights of any person by the government of a in accordance with generally recognized principles of international law; the petition or communication must have been lodged within a period of six months from the date on which the party alleging violation of his or her rights was notified of the final judgement; the subject of the petition or communication must not be pending in another proceedings or settlement; and in the case of individual complaints petitions must contain the name, nationality, profession and signature of the person or persons or of the legal representative of the entity lodging the petition (...)». Domestic remedies must be exhausted before the commission may exercise its power to consider facts denounced as true unless the respondent state contradicts them within the time limit established by the regulations (Cfr. Case 1688–Nicaragua). Many times between in loco reports it is observed the situation of violation of human rights and the observation published to the reports could be used to verify whether or not domestic remedies had been exhausted in cases of this kind. See for example the case 7951 (Honduras), the case 8097 (Honduras), which the commission admitted a petition on behalf of two persons who had allegedly been disappeared while travelling thorough Honduras. On the other hand also the Court has take a position in relation of domestic remedies in a number of case involving both its contentious and advisory jurisdiction. We mentioned also «the Honduran disappearance» cases which have established the standards applied by the commission in dealing with questions concerning the burden of proof and the adequacy and efficacy of domestic remedies. The court has declared: «(...) it must not rashly presumed that a state party to the convention has failed with its obligations to provide effective remedies (...) when it is shown that remedies are denied for trivial reasons or without an examination of the merits, or if there is proof of the existence of a practice or policy ordered or tolerated by the government, the effect of which is to impede certain person from invoking internal remedies that would normal be available to others (...) the exceptions of article 46 (2) would be fully applicable in those situations and would discharge the obligation to exhaust internal remedies since they cannot fulfil their objective in that case (...)». The Court has also order the notion of discrimination in article 24 which can be determined by reference to the prohibited grounds of discrimination which are contained in article 1 (1) and as a consequence of this, equal protection of law should be ensured to all persons regardless of their economic status (Cfr. Velàsquez Rodriguez, preliminary objections, para. 88, Fairen Garbi and Solis Corrales, preliminary objections, para. 87, Godnez Cruz, preliminary objections, para. 90.). After the adoption from the Commission of the petition it should be follow the article 48 to 51 of the convention and the article 42 to 50 of its regulations. The Advisory Power of the Ιnter American Court 61 International and European Union legal Matters January, 2016, no.1 member State of the OAS. The Declaration and the Convention has set forth the civil and political rights and especially the system of a broad range of economic, social and cultural rights such the protection of property, of education, of social security, ecc. in relation to the violation of rights included in the American Declaration, the situation is most complicated, because the petitions must prove the circumstances of the case that constitute a violation113. The term of «circumstances» or The court, in practice, should re–examine the case from the convention and to maintena nce a balance between the rights of the states parties in contentious proceedings and the application of the procedure. In particular in the Cayara case it is observed that the commission has failed with the application of article 25 (2) of the convention and the reports that had issued. Also the commission should publish is decision in annual report. This report after, is presented to the General Assembly of the OAS, the decision is assured of notoriety and may even lead to a discussion of the case before the General Assembly. The Court in particular of this case had declared: «(...) it is generally accepted that the procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities. Keeping within certain and timely limits, some omissions or delays in complying with procedure may be excused, provided that a suitable balance justice and legal certainty is preserved (...)». The Court also has declared its recognition of the object of the convention which is stated to be «to guarantee the individuals» basic human protection of the basic rights of human beings (...) the court and the commission had an obligation to preserve all the remedies that the convention affords victims of violations of human rights as that they are accorded the protection to which they are entitled under the convention (...)» (Cfr. Case 9178 v. Costa Rica, Resolution n. 17/64 of October 3, 1984, inter–American commission on human rights, annual report 1985, in «Human Rights Law Journal», pp. 210 ss. 112OAS/Ser.L.V/II.92 doc. 31 rev.3 May 3 1996, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and cultural rights «Protocol of San Salvador», Article 19: Means of Protection. MEDINA, The Inter-American Commission on Human Rights and the Inter-American Court of human Rights: Reflections on a Joint Venture, in «Human Rights Quarterly», 1990, pp. 439-464. P. PIRRONE, Sui poteri della Corte Interamericana in materia di responsabilità per violazione dei diritti dell’uomo, in Studi di Onore di Filippo Panzera, 1988, pp. 940-961. 113M. E. TARDU, The Protocol to the United Nations Covenant on civil and political rights and the inter–American system: a study of co–existing petition procedures, in «American Journal of International law», 1976, pp. 778 ss. In particular is noted that: «(...) the commission applies two distinct procedures for handling complaints of violations of the American declaration on the The Advisory Power of the Ιnter American Court 62 International and European Union legal Matters January, 2016, no.1 «interpretation» of such situations includes the constitution of domestic law, State responsibility and not only. Violations in relation of the work, of refugees rights, admission for asylum or extradition in the area of penal rights many times provokes problems, because in the region, like Latin America, which has not ratified many international agreements that protects the human rights violations114; and this is a reason for many States that it could not interpret the Convention or the declaration, as may pertinent resolutions of various organs of the inter– right and duties of man: the so–called «ordinary» procedure and a «special» procedure applicable in life and to liberty of person, which are considered of the highest importance. In accordance with he so–called «ordinary» procedure established by article 9 of the commission’s statute and article 37 and 52 of its regulations, the inter-American commission considers complaints by anyone the OAS, except of the communications are anonymous or written in offensive language, of they are «incompatible with the provisions of the statute, the regulations, or obviously unbounded», or if they refer to «events or situations that bear no relation to a disregard of human rights by the Governments against which it is directed» (...) in contrast to the system of the UN Protocol, the ordinary procedure before the inter-American commission does not require the competition of other procedures of international investigation or settlement» which may be pending on the same matter. The silence of the regulation in this regard is related to the fact that, under article 9 (b) of this statute and article 52 of the regulations, the main legal purpose of the ordinary procedure of the inter-American commission is still of other information as a basis for «general» reports and recommendations concerning developments in the field of human rights in various countries (...)». 114Cantoral Benavides case, judgement of August 18, 2000. In the present case the commission has declared that the State of Peru has violated fundamental human rights such the right to petitioner to choose lawyer, to have adequate time and means to prepare a proper defence, the right to personal liberty and judicial protection, to not be compelled to be a witness against himself, to speak without coercion of any kind, to be subjected, after being acquitted in a non appealable judgement new trial for the same facts–non bis in idem–and the right to fair public trial. In particular the court considers «that the military courts of the State had judged the alleged victim for the crime of treason against the (....) requirements of independence and impartiality established in article 8 (1) of the convention. The court considers a case such as the present, the impartiality of the judge (...) have the dual function of combating insurgent groups with military force and of judging and imposing sentence upon members of such groups (...)». The Advisory Power of the Ιnter American Court 63 International and European Union legal Matters January, 2016, no.1 American system such as the earlier inter–American conferences. The rights concluded in the area of American declaration are limited by general clauses similar with the norms of the Conventions. The based restrictions on rights are also limited in the practice. But, any person or group of persons without regard to nationality, citizenship or age, may bring a complaint before the Commission. This type of complaint characterizes also the collective character of petitions. A common petition, better writing as «general petition» 115 is not one phased in general terms but rather a petition that alleges the existence of a widespread or general disrespect for human rights. A collective petition116 also refers to multiple victims and violations and should be supported by specific cases. This type of petitions should include: a) a group of victims; b) a particular incident or fact in relation of the human violation; c) the same type of violations. The advantage from 115We note the general petitions: 1. Case 1641 (Nicaragua), denouncing respected violations of human rights affecting citizens in general and involving arbitrary detention, assassination and torture; 2. Cases 1702 and 1748 (Guatemala), denouncing the assassination of some persons, the systematic violation of human rights affecting the population at large, and the suppression of individual guarantees through the Declaration of a State of siege. (OAS Doc. OEA/Ser.L/V/II.32, oc. 21, rev. 1, April 17, 1974). 116As a collective petitions we note: 1. Case 1688 (Nicaragua), denouncing the murder of members of the Moncada family and violation of the integrity of the person of others, resolution on case 1688, OAS doc.OEA/Ser.L/VII.28, doc.20, rev. 1, May 5, 1972. 2. Case 1780 (Colombia), denouncing the violation of the right to life, liberty, and integrity of the person of armers occupying land on the border between Venezuela and Colombia, OAS Doc. OEA/Ser.L/V/II.36, doc.41, rev.1, October 23, 1975. 3. Case 1802 (Paraguay), denouncing the violation of the right to life, liberty, and integrity of the person of members of the Aché tribe, OAS Doc.OEA/Ser.L/V/II.41, doc., May 27, 1977. The Advisory Power of the Ιnter American Court 64 International and European Union legal Matters January, 2016, no.1 this type of petitions is the procedure character. After the exhaustion of the domestic law remedies the petition must be filed with the Commission within six months of the date on which «the party whose rights allegedly been violated has been notified of the final ruling» 117. The period of six months is inapplicable in the circumstances in which the exhaustion requirement is waived where there is no real opportunity to avail one shelf of domestic remedies or where they are unduly delayed. The Commission has the right to not examine also another petition which is examined in another international organ, or Court. After the admission and registration of the petition a confidential case is prepared containing all correspondence, decisions and other information related to the case and the case is prepared for transmittal to the government concerned. The type of decision which will reached is a friendly settlement, after the Secretariat has made a prima facie determination of admissibility and has concluded a preliminary consideration of the evidence. Any solution should be based «on the basis of aspect for the human rights recognized» 118 in the Convention and the Commission must be satisfied that the terms of the settlement 117LEBLAND, The inter–American Commission on human rights, in «Human Rights Journal», 1976, pp. 650 ss. 118NORRIS and DESIO, The suspension of guarantees. A comparative analysis of the American convention and the constitutions of the States parties, in «American University Law Review», 1980, pp. 190 ss. The Advisory Power of the Ιnter American Court 65 International and European Union legal Matters January, 2016, no.1 protect the general interest as well as that of the individual claimant or victim. Another mode of solution is the publication of the settlement on the parts, which are not authorized to make it public. In case that the States parties or the individuals have not participated in the Convention there is no specific provision for friendly settlement or reference to the Court119. A petition which is referred to an individual has no the direct access to the inter-American Court. The case is represented to the Court by one or more of the Commission’s members who may assisted by staff attorneys or any other person. The Court’s hearings are normally public, unless the Court decides otherwise. The Court also may verify the equitable nature of any agreement between the parties and may proceed with its consideration of the case if it decides that its responsibilities can only be discharged by a final decision. The State party is obligated to comply with the judgment and compensatory damages awarded in the judgment may be enforced in the appropriate domestic Courts. We mentioned that the parties that have recognized the inter-American Court jurisdiction the decision are legally binding. Passing in practice of the jurisdiction of the Court we could 119See the Ivcher Bronstein case, judgement of September 24, 1999. The court has said: «in effect, international settlement of human right case cannot be compared to the peaceful settlement of international disputes involving purely interstate litigation, since as is widely accepted the contexts are fundamentally different, as is widely expect to have same amount of discretion in the former as they have traditionally the latter (...)». The Advisory Power of the Ιnter American Court 66 International and European Union legal Matters January, 2016, no.1 mentioned various cases120. For example: The Cestri Hurtado case (Peru). Order of the President of January 17, 2000. The Court has decided: «to maintain the public hearing to be held on January 25 at 10 (…) to hear the opinions of the inter-American Commission on the request for interpretation of the merits filed by the State in the cestri Hurtado case», after Peru «had request the suspension of the hearing (…)». In the Trujillo Oroza case (Bolivia) the Court held a public hearing in order to State’s brief of 21 January 21, 2000. It was recognized the international responsibility and accepted of the legal consequences from the facts, and the inter-American Commission expressed its satisfaction. In particular the Court «has decided to admit the State’s acceptance of recognition by articles 1 (1), 3, 4, 5 (1), 8 (1) and 25 of the American Court». A request for an advisory opinion 121 has been submitted to the Court by the government of Costa Rica in relation to the enforceability of the right to reply or correct (arts. 14 (1), 1 (1) and 2 of the American Convention on Human Rights), advisory opinion OC–7/86, August 29, 1986, Inter-Am.Ct.H.R. (Ser.A) N.7 (1986), which is a State party to the 120The period of the referred cases is concluded within year 2003. 121See also: Provisional measures ordered by the Court for the Cestri-Hurtado case, which it was based under a report stated from the American commission. The commission has underline the circumstance of extreme gravity and urgency that gave to the provisional measures. (14 August 2000). The Advisory Power of the Ιnter American Court 67 International and European Union legal Matters January, 2016, no.1 Convention and a member of the OAS. The request of the government seeks an advisory opinion under article 64 (1) of the Convention, which is obvious and under article 49 of the rules of procedure which deals with proceedings filed under article 64 (1) and not to article 51 of the rules which is applicable to advisory opinion. The provisions under article 64 (1) do not mean that the Court has jurisdiction, ipso facto, to delay with the questions submitted to it. The Court is called upon to give its answer even thought the request might contain issues outside the scope of its jurisdiction, unless these extraneous issues are completely inseparable from the former or unless there are other reason which would justify a decision by the Court to abstain from rendering its opinion122. The question was: «can it assumed that the full and free exercise of the right protected by article 14 of the American Convention on Human Rights123 is already guaranteed to all persons under the jurisdiction of the State of Costa Rica in virtue of the obligations assumed by our country under article 1 of that 122«(...) no analogy can be drawn between the state practice detailed in article 36 (2) of the statute of the international court of justice an acceptance of the optional clause concerning recognition of the jurisdiction of this court, given the particular nature and the objective rules of the American Convention (...)». Cfr. Ivcher Bronstein case, judgement of September 24, 1999. 123The article 14 reads: «The States parties to this convention undertake to respect the right and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition». The Advisory Power of the Ιnter American Court 68 International and European Union legal Matters January, 2016, no.1 Convention?». The Court has noticed the interpretation of two different articles. In particular the article 14 (1) of the convention in relation to article 1 (1). The Court shall address, only the first issue with reference to article 64 (1) of the convention124. For the second issue, falls outside the advisory jurisdiction of the Court. The government of Costa Rica has request an advisory opinion in relation to the habeas corpus in emergency situations (arts. 27 (2) and 7 124The Government of Colombia in 1989 has request the interpretation of the American Declaration of the Right and Duties of man within the framework of article 64 of the American Convention on Human Rights. The question was: «does article 64 authorize the inter–American court of human rights to render advisory opinions at the request of a member state or one of the organs of the OAS, regarding the interpretation of the American Declaration of the rights and duties of man, adopted by the ninth international conference of American States in Bogota in 1948?». The main points of the government request was based to the function of the inter– American system for the protection of human rights, whether the Court has jurisdiction to interpret the declaration, and if so, what the scope of his jurisdiction is within the framework of article 64 of the Convention. In the same argument the government of Peru has declared that: «although the Declaration could have been considered an instrument without legal effect before the American Convention on Human Rights entered into force, the convention has recognized its special nature by virtue of article 29, which prohibits any interpretation». The Court had not passed on the legal status of the American declaration. The interp retation of the convention or any other treaty concerning human rights might require the analysis of international instruments which may or not be treaties strictu sensu does not mean that the request for an advisory opinion is inadmissible or it could be analyses under the article 64 of the convention. The legal status of the declaration bears on the merits of the request and not on its admissibility. We mentioned also the Vienna convention on the law of treaties of 1969, which in article 2 (1) (a) declares that: «treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particulate designation». The Court has take the decision to presentation an advisory opinion justified on the basis to article 64 (1) of the American convention which authorizes the Court to render advisory opinions based on the interpretation of the American declaration of the rights and duties of man and the scope of the Court in relation on the charter and convention or other relating treaties is the protection of the human rights in the region of Latin America. The Advisory Power of the Ιnter American Court 69 International and European Union legal Matters January, 2016, no.1 (6) of the American Convention on Human Rights, advisory opinion OC– 8/87, January 30, 1987, Inter-Am.Ct.H.R (ser. A) n. 8 (1987). The request has submitted to the Court by the Commission pursuant to the power conferred upon it by the Convention, which enables the organs listed in chapter X of the OAS Charter to seek, within their spheres of competences and «interpretation of the American Convention or of other treaties concerning the protection of human rights in the American States»125. The request is concentrated on articles 25 (1) 126 and 7 (6) of the Convention when read in conjunction with the final clause of article 27 (2)127 thereof. The Commission insists that the habeas corpus acquires greater importance and recognize that pursuant to article 27 of the American Convention, the right to personal liberty may be temporarily suspended in time of war, public danger or other emergency that threatens the independence or security of the State and 125J. PADDICORD, The American convention on human rights: potential defects and remedies, in «Texas International Law Journal», 1984, pp. 130 ss. 126«Everyone has the right to simple and prompt resources or any of the effective recourse, to a competence court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this convention, even though such violation may have been committed by persons acting in the course of their official duties». 127The article 27 reads: «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 not involve discrimination on the ground or race, colour, sex, language, religion or social origin (...)». The Advisory Power of the Ιnter American Court 70 International and European Union legal Matters January, 2016, no.1 that the authority vested «in the executive branch permits» the temporary detention of a person solely on the basis of information that he or she endangers the independence or security of the State. The interpretation of the articles relating to the State of emergency must take account to the rules of interpretation which is settled out with the Vienna Convention on the law of Treaties. In particular: «a Treaty shall be interpreted in good faith 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 (art. 31 (1))». The right to life and to human treatment are threatened whenever the right to habeas corpus impartially or wholly suspended. In particular the American Commission on Human Rights: «is convinced that thousands of forced disappearances could have been avoided in the recent past if the write of habeas corpus had been effective and of the judges had investigate the detention by personally going to the places that had been denounced as those of committal this write in the best instruments available to correct promptly abuses of authority involving arbitrary deprivation of freedom. It is also an effective means of preventing torture and other physical and psychological abuses, such as exile, perhaps the worst punishment, which has been so abused in our hemisphere, where thousands of exiles make up a true exodus. As the The Advisory Power of the Ιnter American Court 71 International and European Union legal Matters January, 2016, no.1 Commission has painfully recalled in its last annual report, these tortures and constraints tend to occur during long periods of communication, during which the prisoner lacks the legal means and remedies to assert his rights. It is precisely under these circumstances that the write of habeas corpus is of greats importance (….)». The Court has based and underlines the importance of the suspension of guarantees that may not exceed the limits of that strictly required to deal with the emergency128. From this point of view it is important to suspend guarantees without complying with the conditions referred to measures applicable to the rights of freedoms that have been suspended for violations of these principles. In the same spirit the Court in another case: the Càmara Federal De Apelaciones en lo criminal y correccional of Buenos Aires, Argentina (case n. 1980 of April 1997), which is granting a write of habeas corpus ruled that: «it is not possible to accept the agreement that the President of the Republic is alone empowered to examine the situation of those who are detained at his order. Although it is clearly beyond the scope of judicial activity to consider matters of political and not judicial import, it is equally clear that it is the duty to the judiciary of the nation to examine exceptional cases such as the present as to the reasonableness of the measures taken by the executive 128M. G. SCHMIDT, Human rights in security matters, in «Nordic Journal of International Law», 1992–1993, pp. 222 ss. The Advisory Power of the Ιnter American Court 72 International and European Union legal Matters January, 2016, no.1 and this is out in articles 23, 29 and 95 of the national constitution. The general interest has also to be balanced by individual liberty so that it must in no way be supposed that those who are detained at the pleasure of the executive are simply to be left to their fate and are removed beyond the scope of any review by the national judiciary, no matter how long they might be kept under arrest. In view of the need to choose between individual freedom and the hypothetical and undemonstrated dangerous nature, we choose the former, running the risks that it involves, safeguarding a value which no Argentine has renounced (…)»129. Unanimously the Court had decided in the cases that we analysed that «the provisions of article 27 (2) of the American Convention on Human Rights, the legal remedies guaranteed in articles 7 (6) and 25 (1) of the Convention may not suspended because they are judicial guarantees essential for the protection of the rights and freedoms whose suspension article 27 (2) prohibits»130. Another advisory opinion was requested from the inter-American Commission on Human Rights in 1990131. The request was: «does the 129Inter–American Commission on Human Rights, Report on the situation of human rights in Argentina, OEA/Ser.L/V/II.49, doc 19 of 11 April 1980. 130L. R. SCHEMAN, The inter–American Commission on human rights, in «American Journal of International Law», 1965, pp. 335 ss. 131Exceptions to the exhaustion of domestic remedies (Arts.6 (1), 46 (2) (a) and 46 82) (b) of the American Convention on human rights, advisory opinion OC–11/90, August 10, 1990, Inter. Am.Ct.H.R (Ser.A), n. 11 (1990). The Advisory Power of the Ιnter American Court 73 International and European Union legal Matters January, 2016, no.1 requirement of the exhaustion of internal legal remedies apply to an indigent who because of economic circumstances is unable to avail himself of the legal remedies within a country?». The Commission stated the following: indigence: because the Commission has received many petitions in which the victims alleged that they had not been able to exhausted all the internal remedies in relation of the domestic legislation, and the legal remedies of a State are not in fact available to an alleged victim of a violation of human rights and should the Commission be obligated to dismiss his complaint for failure to meet the requirements of article 46 (1) (a); the other point of reference was the lack of counsel: it is obvious the lack of lawyers opinions and counsels. The victim was unable to retain counsel, limiting in this way the ability to effectively pursue the internal legal remedies putatively available at law132. In particular the Court has taken in mind the provisions contained in articles 1 (1), 24 and the relevant parts of article 8 of the Convention, which are closely related to the instant matter and read as follows: «the States parties to this convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their 132L. R. SCHEMAN, The OAS and the quest for international cooperation: American vision or mirage, in «Case Western Reserve Journal of International law», 1981, pp. 85 ss. PANEL, The OAS Charter after 40 years, in «American Society of International Law Proceedings», 1988, pp. 100 ss. The Advisory Power of the Ιnter American Court 74 International and European Union legal Matters January, 2016, no.1 jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other national or social origin economic status, birth or any other social condition». The Commission has declared that has received certain petitions in which the victim alleges that he has not been able to comply with the requirements of the exhaustion of remedies set forth in the domestic legislation because he cannot afford legal assistance or the obligatory filing fees. The Court's opinion on that was that «if his indigence of a generalising the legal community to represent him prevents a complaint before the Commission from invoking the domestic remedies necessary to protect a right guaranteed by the Convention, he is not require to exhaust such remedies (…) the complainant must then demonstrate that the exceptions contemplated in article 46 (2) apply and that he was prevented from obtaining the legal counsel necessary for the protection of rights guaranteed by the Convention»133. In conclusion, the advisory power of the Court is concentrated on the in toto inherent democratization/democratic constitutionalism of the Convention and of the society in general. The principle of legality signifies protection of human rights and freedoms between the organs 133D. J. HARRIS and S. LIVINGSTONE, The Inter–American system of human rights, Clarendon press, Oxford, 1998. The Advisory Power of the Ιnter American Court 75 International and European Union legal Matters January, 2016, no.1 that «could exercise their powers»134. The opinions of the interAmerican Court have a character of advisory and such consequently they do not have any binding force. We also see a comparison between the contentious cases and advisory opinions power in case of restrictions to the death penalty which is decided that: «(…) no State is required to defend itself against formal charges, for the proceedings does not contemplate formal charges; no judicial sanctions are envisaged and none can be decreed. All the proceeding is designed to do is to enable OAS member States and OAS organs to obtain a judicial interpretation of a provision embodied in the Convention or other human rights treaties in the American States» 135. An expressis verbis in conformity with the legal obligations laid down in the American convention as explained by the interpretation which is given by the Court136. 3.2.International tribunals exercising advisory and contentious 134I–A Court, advisory opinion OC–6/86, series A, No. 6, p. 30, para. 24 ss. 135See I–A court H.R, Restrictions to the death penalty (arts. 4 (2) and 4 (4) American convention on human rights), Advisory opinion OC–3/83 of September 8, 1983. Series A, n. 3, p. 56, para. 10. On the effect of reservations, it observed that art. 75 only «makes sense» if understood as authorising «the states to make whatever reservations they deem appropriate», provided they are «not incompatible with the object and purpose of the treaty». See also I–A court HR, The Effect of reservations on the entry into force of the American convention (arts. 74 and 75), Advisory opinion OC–2/82 of September 24, 982, Series A, n. 2, p. 18, para. 35. 136See also: Trujillo Oroza case, judgement of January 26, 2000. The Advisory Power of the Ιnter American Court 76 International and European Union legal Matters January, 2016, no.1 jurisdiction have at times to confront a problem that arises when they are asked to render an advisory opinion on an issue that is, at one and the same time, the subject of a dispute between two or more States or between a State and an international organization. Here the argument frequently made is that the request for an advisory opinion is a disguised contentious case and that it should be heard only if all the parties have accepted the tribunal’s contentious jurisdiction 137. The International Court of Justice, for example, has consistently rejected such arguments and complied with the requests 138. The inter-American human rights system adds a new dimension to 137The declaration of recognition of the contentious jurisdiction of an international tribunal not give at the state the authority to change its content and scope at some later date. In particular see the judgement of Ivcher Bronstein case which is declared that: «(...) the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires areas time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity (...)». In the constitutional court case, judgement of September 24, 1999, the Court has declared that: «(...) recognition of the court’s binding jurisdiction (...) which there can be no limitations except those expressly provides article 62 (1) of the American conventional because the clause is so fundamental to the operation of the convention’s system of protection is cannot be at the mercy of limitations not already stipulated but invoked by states parties for internal reasons. (...) the court must act in a manner that preserve the integrity of the mechanism provided for in art. 1 of the convention. That mechanism cannot be subordinated restrictions that the respondent state might and to the terms of recognition of the court’s binding jurisdiction, as that would adversely affect the efficacy of the mechanism and could obstruct its future development». 138The permanent Court of International Justice reached decision in the Advisory Opinion on Eastern Carelia, 1923 PCIJ, ser. N° 5, but the case has been consistently distinguished by the ICJ. M. POMERANCE, The Advisory function of the International Court in the League and U.N, Eras 277 1973. T. BUERGENTHAL, The revised OAS Charter and the protection of Human Rights, in «American Journal of International Law», 1975, pp. 828 ss. C. FERWICK, The OAS: The Transition from an Unwritten to a Written Constitution, in «American Journal of International Law», 1965, pp. 315 ss. The Advisory Power of the Ιnter American Court 77 International and European Union legal Matters January, 2016, no.1 this problem that is unique to the advisory functions of the Court 139. The contentious jurisdiction of the Court is intended to protect the rights and freedoms of specific individuals, not to resolve abstract questions. There is no provision in the Convention authorizing the Court, under its contentious jurisdiction, to determine whether a law that has not yet affected the guarantees rights and freedoms of specific individuals is in violation of the conventional as has already been noted, the Commission has that power140 and it would fulfill its main function of 139It is also obvious that the states parties of the Convention concerned have recognized the jurisdiction of the court, but means of a special declaration pursuant to article 62(1) and (2) of the American convention, or else by a special agreement. 140For the financial control and human resources for the best function of the commission see the article of V.Gòmez with title: The interaction between the political actors of the OAS, the commission and the court, in D. J. HARRIS and S. LIVINGSTONE (ed.), op. cit., pp. 200 ss. In particular has written: «(...) the budget has grown to approximately US$ 3 million, still without matching the needs of an organ with multiple functions that are to be exercised in respect of 35 OAS member states. This increase in budget has not been the result of systematic planning. It has rather been the result of sporadic attempts to arm the commission with the necessary tools to carry out specific missions (...) the allocation of special funds on the initiative of a particular member State, without a previous request by the organization, give rise to controversy. A group of member States, some of which did not wish to be scrutinized by a commission with enhanced capabilities, condemned this gesture as an attack on OAS autonomy (...) the commission has never receive the necessary support for the achievement of its broad mandate. He lack of an appropriate budget is one of the explanations for its lack of efficiency both as a quasi–judicial organ and as an advocate before the court (...) the membership of the OAS has increased and with it the universe of individuals to be protected, the growing ratification of the American Convention has enlarged and refine the jurisdiction of the systematic violations and studies of general situations have given way to increasingly sophisticated individual complaints which take time to examine (...) the statute of the commission entrusted the Secretary General of the OAS with the appointment of personnel from the Pan American Union to provide Secretariat services to the commission during the period of sessions. (...) the Secretary General controls the recruiting and removal of staff, who are considered part of the personnel of the General Secretariat of the OAS (...) the Secretariat is in charge of general administration, the handling of complaints, research, the drafting of reports and the organisation of special missions, such as in loco visits (...) The formal adoption of a procedure for the study of individual and inter–State The Advisory Power of the Ιnter American Court 78 International and European Union legal Matters January, 2016, no.1 promoting respect for and defense of human rights 141. The Court also could do so in the exercise of its advisory jurisdiction, pursuant to article 64 (2). In particular under Article 64 (1) of the Convention the Court’s advisory jurisdiction may be invoked not only by organs or organizations, as is the case in the UN system, but also by States 142. The Court might therefore confront a petition by a State asking it to render an advisory opinion relating to a dispute between the petitioner and another State, which dispute could not be referred to the Court as a case because one of the States had not accepted its contentious jurisdiction. Moreover, the Inter-American Commission on Human Rights, which has the right to request advisory opinions, exercises powers under the Convention comparable to that of a tribunal of first instance in dealing with charges alleging violations of human rights by a State party and may also refer contentious cases to the Court143. complaints in the 1965 and 1979 amendments to the statute increased the functions of the commission and the sophistication of the procedural rules involved (...)». 141See: Provisional measures ordered by the inter-American court of human rights in the matter of the Republic of Trinidad and Tobago, James et al. Cases. The court decides that: «to require the state of Trinidad and Tobago to submit on the behalf of detailed information concerning the proceedings of persons before the domestic courts (...) to urge the state of Trinidad and Tobago and the inter-American commission on human rights to inform the interAmerican court of human rights a significant development concerning the circumstances of the cases». 142See: Provisional measures Paniagua Morales et al. Case decided on January 29, 2001. 143See Convention, Arts 46, 51 and 52. P. HARPER, Fifteen Truth Commissions-1974 to 1994: a Comparative Study, in «Human Rights Quarterly», 1994, pp. 597. J. WASH LAUCHLAN D. SUAGEE P. SCALANGER, Conference Report: The Inter-American Human Rights System: Into the 1990s and beyond, in «American University Journal of International Law and Policy», 1988, pp. 517 ss. The Advisory Power of the Ιnter American Court 79 International and European Union legal Matters January, 2016, no.1 Since the Commission may only bring such cases to the Court if the States concerned have accepted the Court’s jurisdiction, the question arises whether the Commission has the power, in the absence of a State’s consent, to seek an advisory opinion under Article 64 (1) regarding a legal issue in dispute in a case being considered by the Commission144. To date, the Court has dealt with only one case bearing on these issues. Here the inter-American Commission had embarked on a country study of the human rights situation in Guatemala, which was charged with numerous human rights violations 145. The authority of the Commission to prepare country reports derives from its status as an OAS Charter organ and is governed by different provisions of the R. NORRIS, The new Statute of the Inter-American Commission on Human Rights, in «Human Rights Law Journal», 1980, pp. 379 ss. P. P. CAMARGO, The American Convention on Human Rights, in «Reveu des Droits de l’ Homme», 1970, pag. 348-351. 144See: Provisional measures requested by the inter–American commission of human rights in the matter of the Republic of Colombia. Peace community of San José: De Apartadò case, in October 9, 2000. 145See Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Republic of Guatemala, OEA/Ser.L/V/II.61, doc. 47, rev. 1 (Oct. 5, 1983). A. P. SCREIBER, The Inter-American Commission on Human Rights, Leyden 1970. J. CAICEDO CASTILLO, El derecho internacional en el sistema interamericano, Madrid 1970, pp. 214-218. A. LINARES, Derecho internacional pùblico, II e III, Caracas 1983. R. NIETO NAVIA, El sistema interamericano de derechos humanos, in XI Curso de derecho internacional, organizzato dal Comitato giuridico Interamericano-OAS, Washington 1985. J. BALLALOUD, Droits de l’homme et organisations internationales: Vers un nouvel ordre humanitaire mondial, Paris 1984. K. VASAK, La commission interamèrican des droits de l’homme. La protection internationale des droits de l’ homme sur le continet amèricain. Bibliothèque constitionnelle et de science politicque, Tome XXXV, pp. 318-325. The Advisory Power of the Ιnter American Court 80 International and European Union legal Matters January, 2016, no.1 Convention and its Statute from those which deal with the disposition of petitions field by individuals and communications presented by States parties charging another State party with violations of the human rights guaranteed in the Convention146. When the Commission prepares country studies and reports, it acts first and foremost as an OAS Charter organ; whereas, when it deals with petitions and communications field under the Convention 147, it discharges the 146Country studies and reports are authorized by Article 41 (c) of the Convention Article 18 (c) and (g) of the Commission’s Statute, they may be carried out by the Commission in relation to all OAS member States. The power of the Commission vis-à-vis States not parties to the Convention flows from the general grant of authority contained in Article 112 of the OAS Charter, which refers specifically to the Convention. The power of the Commission to decide individual petitions is contained in Article 41 (f) of the Convention and applies only to States parties. The power of the Commission to receive communications by one State party against another is restricted to States that have made a special declaration under Article 45 of the Convention. R. E. NORRIS, The Individual Petition procedure of the Inter-American System for the protection of Human Rights, in H. HANNUM, Guide to International Human Rights in Practice, 1984, pp. 136-140. 147We noted the Report of the General Assembly of the OAS held in thirtieth regular session from 4 to 6 June of 2000. With the delegations of 9 states which had spoken for the court work, in an ad hoc resolution the General Assembly has decided: «1. To receive and transmit to the inter–American Court of human rights the observe and recommendations of the OAS permanent Council on the annual reports. 2. To reiterate that the judgements of the Court are final and may not be appealed that the states parties to the convention undertake to comply with the rulings of the Commission all cases to which they are party. 3.To urge the states that have denounced the American Convention on Human Rights that have withdrawn their recognition of the obligatory jurisdiction of the Court reconsider their decisions. 4. To urge those member States of the OAS that have not yet done so to consider matter of the highest political priority, signing, ratifying, or acceding to the inter– American convention on human rights, pact of San José, and to recognizing the binding jurisdiction of the inter–American Court of Human Rights. 5. To instruct the permanent Council to institute a substantial increase in the allocated to the Court in upcoming fiscal period, based on the acknowledgements promotion and protection of human rights constitute a fundamental priority organization. 6. To thank the inter–American Court of Human Rights for its work during the covered by this report. Moreover, in a resolution entitled «evaluation of the workings of the inter–American system for the protection and promotion of human rights with a view improvement and strengthening», The Advisory Power of the Ιnter American Court 81 International and European Union legal Matters January, 2016, no.1 functions of a tribunal of first instance or Convention institution which, together with the Court, comprises the judicial and enforcement machinery provided for by the Convention 148. Under Article 25 from the Rules of procedure of the Court: At any stage of the proceedings cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its motion, order such provisional measures as it deems to pertinent, pursuant to Article 63 (2) of the the General Assembly decided as follows in its preparative paragraph: 7. To recommend to the inter–American Court of Human Rights, in connection request for ideas and suggestions on the reform process, in accordance with the governing its areas of competence, and in the context of the regulatory (...) conferred upon it by the American convention on human rights in terms procedures followed in processing individual case, it considers the possibility of: a) allowing direct participation by the victim as a party to proceedings for time that the case is first submitted to its jurisdiction, bearing the need to maintain procedural equity and to redefine the role of IACHR in such proceedings (locus standi); and b) developing procedural rules to prevent the duplication of procedures submitted to its jurisdiction, in particular the production of bearing in mind the differences in nature between the Court and Commission. 8) to transmit this resolution to the inter–American court of human rights inter–American Commission on Human Rights. (Resolution AG/Res.1754 (XXX–O/OO). 148These different functions need to be kept in mind when analysing the Court’s advisory opinion involving Guatemala . Restrictions to the Death Penalty (Arts. 4 (2) and 4 (4) American Convention on Human Rights), Advisory Opinion N° OC-3/83 of Sept. 8, 1983, Inter-American Court of human Rights, ser. A: Judgments and Opinions, N° 3, para. 42, 1983, reprinted in «International Legal Material», n. 23, 1984, p. 320 ss. A. L. LEVIN, The Organization of American States and the United Nations: relations in the peace and security field, in A Unitar Regional Study N° 4–Peaceful Settlement N° 7, New York 1974. T. BUERGENTHAL and R. E. NORRIS, Human rights: The Inter-American System. Binder 1–Dobbs Ferry, Oceana pbls 1982, (Compilation); C. TRINDADE, The domestic jurisdiction of States in the practice of the United Nations and Regional organisations, in «International and Comparative Law Quarterly», 1976, pp. 715. P. PIRRONE, Organization of American States, in «Digesto delle Discipline Pubblicistiche», pp. 187–217. C. JONATHAN, Cour interamèricaine des Droits de l’homme, in «Revue Gènèrale de Droit International Public», 1990, pp. 455-471 . The Advisory Power of the Ιnter American Court 82 International and European Union legal Matters January, 2016, no.1 Convention149. The Court, obviously, may act at the request of the Commission. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication 150. The recipient of the request shall immediately bring it to President’s attention. If the Court is not sitting, the President, in consultation with the Permanent Commission and if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectives of any provisional measures subsequently ordered by the Court at its next session. The Court shall include, in its Annual report to the General Assembly, a statement 149See: Provisional measures, January 27, 2009, I/A Court H.R. Matter of Luis Uzcàtegù; January 27, 2009, I/A Court H.R. Case of Bàmasca-Velàsquez c. Guatemala. BURBANO H., Provisional measures in the case od the inter-american Court of human rights, Portland, 2010. 150See: 1. Carpio Nicolle case, provisional measures in the matter of Guatemala, order of the Court of February 1, 1996, Inter–Am.Ct.H.R. «The inter–American court of human rights by virtue of article 63 (2) of the American Convention on Human Rights, and in exercise of the powers conferred on it by articles 24 and 25 of its Rules of Procedure». 2. Alemàn Lacayo case, provisional measures in the matter of Nicaragua, Order of the Court of February 2, 1996 Inter– Am.Ct.H.R. «The inter–American Court of human rights by virtue of article 63 (2) of the American Convention on human rights, and in exercise of the powers conferred on it by article 24 of its rules of procedure, decides: 1. To call upon the government of the Republic of Nicaragua to adopt, for with, such measures as are necessary to protect the life and personal integrity of Dr. Arnoldo Alemàn–Lacayo and to avoid irreparable damage to him, in strict compliance with its legal obligation under article 1 (1) of the convention to respect and guarantee human rights. 2. To call upon the Government of Nicaragua to investigate the events and punish those responsible for them. 3. To call upon the Government of Nicaragua to submit to the Court, upon notification of this order, a monthly report concerning the provisional measures which it has taken and upon the inter–American Commission on Human Rights to forward to the Court its observation on such report within fifteen days of its receipt. 4. To include this matter on the agents of the next regular session of the court in order to analyse the results of the measures adopted by the Government of Nicaragua». LARSEN, The inter-american Court of human rights, Oxford University Press, 2010. The Advisory Power of the Ιnter American Court 83 International and European Union legal Matters January, 2016, no.1 concerning the provisional measures during the period of the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate151. Provisional measures were adopted also in the Haitians and dominions of Haitan origin in the Dominic case. On August 7, 2000 the Court issued an order objected to by the Dominican Republic, who were to declare in the public situation of Haitians and Dominicans of Haitian origin in the Dominicans in regard to the commission’s request for provisional measures. It is also decided: «to call on the State of the Dominican Republic to deporting or expelling from its territory Benito Tide Méndez (…) the family reunification of Antonio Sensio and with the children and minors in the Dominican Republic (…)». In Alvarez et al. case (Colombia) on August of 2000 the Court had decided to maintain to provisional measures adopted in this case in favor of members of the Association of detained and disappeared persons of Colombia and to ratify the order of July, 17, 2000 and May, 26, 2001 152. In Clement 151Rules of Procedure of the Inter-American Court of Human Rights in Effect as of January 1, 1997, Inter-Am. Ct.H.R. T. BUERGENTHAL and R. E. NORRIS, op.cit. FORST, The evolution of the Inter–American Court of Human Rights: reflections of present and former judges, in «Human Rights Quarterly», 1992, pp. 171 ss. MAHINGA, La contribution de la Cour interamèricaine des droits de l’ homme à la protection de la personne humaine: premières tendaces, in «Revue de Droit International et de Droit Comparè», 1992, pp. 44 ss. 152«The inter–American court of human rights decides: a) to request the state of the Dominican Republic to maintain the measures by the inter–American court of human rights in its orders of August 18 and 12 of 2000, b) to request the State of the Dominican Republic to submit detailed in the status of the provisional measures and the situation of all the protection, c) to request the The Advisory Power of the Ιnter American Court 84 International and European Union legal Matters January, 2016, no.1 Teheran et al. case (Colombia) the court has called the inter–American commission to provide it information on the status of the provisional measures153 and the situation of all persons, once it had established contact with them. In case Durnad and Ugarte case (Peru) the court has declared the State violated of articles 7 (1), 7 85) of the American Convention to the detrent detention of Nolberto Durand Ugart Pablo Ugarte Rivera. It is declared that the State violated article 8 (1) and American Convention and failed to comply with the general obligations State of the Dominican Republic to notify the competent authorities in writing that the beneficiaries of provisional measures ordered by the inter–American court of human rights to prevention being deported or expelled from the Dominican Republic; and to continue following up on the investigations that have initiated on human rights to take the necessary steps to create mechanisms and monitor the above mentioned measures». 153Order of the inter–American Court of human rights of January 28, 2001, provisional measures Panigua Morales et al. Case. In particular the Guatemala has been a State party of the American convention. Under article 63.2 of the American convention it deems pertinent and under consideration also the article 25.1 of the Rules of procedure to decide in case of extreme gravity and urgency to «avoid irreparable damage to persons which has done so previously (...)». The inter–American court of human rights has decided to adopt necessary measures in relation of the right to life and state of Jesús Gonzàlez Chinchilla to present reports for the adoption of provisional measures under the articles of American convention of human rights, see also: Loayza Tamayo case, provisional measures. Order of the President of the inter– American human rights of December 13, 2000, ninth considering clause; the Peace community of San José case, provisional measures. Order of the Inter–American court of human rights of tenth considering clause, Haitians and Dominians of haitian origin in the Dominican Republic clause; The Peace community of San José de Apartadò case, provisional measures. Order of the court of human rights of September 14, 2000, sixth considering clause; Haitians and Dominican origine in the Dominican Republic case, provisional measures. Order of the inter–American rights of August 18, 2000, eleventh considering clause; Constitutional court case, provisional court case, provisional measures, order of the President of the inter-American court of human rights, April 7, 2000, series E, No. 2, ninth considering clause and Digna Ochoa y Plàcido et al., measures. Order of the inter-American court of human rights of November 17, 1999, seventh considering clause; James et al. Case. With respect to Trinidad and Tobago, order of the interAmerican court of human rights, December 2, 2003. The Advisory Power of the Ιnter American Court 85 International and European Union legal Matters January, 2016, no.1 of an article 2 of the Convention in connection with the substantive rights. It also decides that the state (…) must repair the damages accused by the violation of the reparations stage. In refers to the right of life is the case of Blake case (Guatemala)154. It is decided: «to call on the state of maintaining all necessary measures to protect the right of life and personal integration of Martnez Morales, Floridalma Rosalina Lòpez, ecc, the Court» about the measure it has taken to investigate the threats that the effective results that lead to the discovery and punishment of this responsibility «called on the State of Guatemala to continue presenting its reports on the measures adopted every six months and on the inter-American Commission observations on these report within six weeks of receiving them (…)». Provisional measures was requested from the inter-American Commission on Human Rights regarding Peru in 1990. With the resolution no. 2/90 it was requested from the Government of the Republic of Peru «the adoption of precautionary measures to protect the life and personal integrity of journalist», in the same also resolution 154See also the 19 Merchants case. Preliminary objections, judgement of June 12, 2002. In particular: «(…) the Commission also states that judicial activity undertaken by the State authorities specifically the regular and military courts, over more than a decade, does not satisfy the standards set forth in the American Convention regarding the right to fair trial. In light of the above, the Commission noted that trial of the army officers who were the alleged intellectual authors of the massacre, in military courts, ended in cessation of the proceedings, and that trial civilians responsible for directly perpetrating the facts is still pending (…)». The Advisory Power of the Ιnter American Court 86 International and European Union legal Matters January, 2016, no.1 the Commission has request provisional measures regarding the journalists, for which purposes it will send the main information about the situation. The Court has based, ab initio, on article 63 (2) of the American Convention on Human Rights and on the authority on him by article 23 (4) of the Rules of procedure. In the decision of the Court on January 27, 1993, the Court «has not adopted the provisional measures requested by the Commission and provided for under articles 63 (2) 155 of 155In the same article is based the order of the inter-American court of human rights of November 26, 2001. Provisional measures ordered by the inter-American Court of Human Rights in the matter of the Republic of Trinidad and Tobago, James et al. cases. In particular the commission has requested to the court to order the state: «(...) to take all measures necessary to preserve the lives and physical integrity (...) so as to not to hinder the processing of their cases before the inter–American system (...)». The provisional measures presented is based to: a) five additional petitions pending before the commission received between November 2000 and April 2001, concerning events allege to have occurred in whole or in part, b) in the five cases the petitioners alleged to the commission that the State has violated specific rights under the American convention and the American declaration of the rights and duties of man, c) the commission requested precautionary measures in each of five cases, d) the commission has not had the opportunity to complete its examination of these complaints and to issue decisions in all of these cases. On the other hand the court has decided: a) to require the Republic of Trinidad and Tobago to take all measures necessary to preserve the lives of Balkissoon Roodal, Sheldon Roach, Arnold Ramlogan, Beemal Ramnarace and Takoor Ramcharan, b) to require the Republic of Trinidad and Tobago to submit an urgent communication to the inter–American court of human rights by November 5, 2001, c) to submit the request of the inter–American commission on human rights, this order, and the urgent communication that will be presented by the Republic of Trinindad and Tobago for the consideration of the inter–American court of human rights. The court has decided to adopt measures necessary to preserve the life and personal integrity of the persons that has accused the state (...) to submit its observations on these reports to the inter–American court of human rights within fifteen days of receipt. See also the ultimate provisional measures decided from the Court:I/A Court H.R., Matter of Juan Almonte Herrera et al. regarding Dominican Republic. Order of the Inter-American Court of Human Rights of November 13, 2015; I/A Court H. R., Case of García Prieto et al. regarding El Salvador. Order of the Inter-American Court of Human Rights of November 20, 2015; I/A Court H. R., Matter of Rojas Madrigal in relation to the Case of Amrhein et. al v. Costa Rica. Request for Provisional Measures. Order of the Inter-American Court of Human Rights of November 18, 2015; I/A Court H. R., Case of Gonzales Lluy et al. regarding Ecuador. Order of the InterThe Advisory Power of the Ιnter American Court 87 International and European Union legal Matters January, 2016, no.1 the convention and 24 of its rules»156. Provisional measure was ordered by the inter-American Court of human rights in the matter of the Republic of Guatemala, Colotenango case. It is requested «the adoption of measures aforementioned persons continue to reside at or return to their homes providing them the American Court of Human Rights of September 02, 2015; I/A Court H. R., Matter of Meléndez Quijano et al. regarding El Salvador. Order of the Inter-American Court of Human Rights of June 30, 2015; I/A Court H. R., Case of Rosendo Cantú et al. regarding Mexico. Order of the InterAmerican Court of Human Rights of June 23, 2015; I/A Court H. R., Matter of the SocioEducational Internment Facility regarding the Federal Republic of Brazil. Order of the InterAmerican Court of Human Rights of June 23, 2015; I/A Court H. R., Matter of Giraldo Cardona and others regarding Colombia. Order of the Inter-American Court of Human Rights of January 28, 2015; I/A Court H. R., Case of García Prieto et al. regarding El Salvador. Order of the InterAmerican Court of Human Rights of January 26, 2015; I/A Court H. R., Case of Galindo Cárdenas et al regarding Peru. Order of the Inter-American Court of Human Rights of May 28, 2014; I/A Court H. R., Matter of Wong Ho Wing. Provisional Measures with regard to the Republic of Peru. Order of the Inter-American Court of Human Rights of August 22, 2013; I/A Court H. R., Case of Pacheco Teruel et al. regarding Honduras. Order of the Inter-American Court of Human Rights of August 21, 2013; I/A Court H. R., Matter of Marta Colomina regarding Venezuela. Order of the Inter-American Court of Human Rights of August 19, 2013; I/A Court H. R., Matter of Álvarez et al. regarding Colombia. Order of the Inter-American Court of Human Rights of May 22, 2013; I/A Court H. R., Case of Pacheco Teruel et al. Request for Provisional Measures regarding Honduras. Order of the Inter-American Court of Human Rights of February 13, 2013; I/A Court H. R., Case of Carpio Nicolle et al. regarding Guatemala. Order of the Inter-American Court of Human Rights of October 25, 2012; I/A Court H. R., Case of Raxcacó Reyes et al regarding Guatemala. Order of the Inter-American Court of Human Rights of September 04, 2012; I/A Court H. R., Application for Extension of Provisional Measures regarding Venezuela. Matter of Certain Penitentiary Centers of Venezuela. Order of the President of the Inter-American Court of Human Rights of August 07, 2012; I/A Court H. R., Case of Gonzalez-Medina and family v. Dominican Republic. Order of the Inter-American Court of Human Rights of June 21, 2012; I/A Court H. R., Matter of Wong Ho Wing regarding Peru. Order of the Inter-American Court of Human Rights of April 27, 2012; I/A Court H. R., Matter of Haitians and Dominicans of Haitian-origin in the Dominican Republic regarding Dominican Republic. Order of the Inter-American Court of Human Rights of February 29, 2012; I/A Court H. R., Matter of L.M. regarding Paraguay. Order of the President of the Inter-American Court of Human Rights of January 23, 2012. 156Decision of the inter–American Court of human rights January 27, 1993, provisional measures requested by the Inter–American Commission on Human Rights regarding Peru. The Advisory Power of the Ιnter American Court 88 International and European Union legal Matters January, 2016, no.1 assurance that they would not be prosecuted or threatened by his government or by individuals». Although the visits, the reports, the ad hoc witnesses it is difficult the protection of life integrity and the capture of the responsible persons. The Court under the article 63 (2) of the American Convention has decided to take provisional measures, based on the article 25 (1) and 5 (2) of the rules of procedure. The «situation of extreme gravity and urgency» persists that just provisional measures adopted in favor of these persons will be protected for the Court between punishment of those responsible for the facts that led to the adoption of measures for the next months. In Bàmaca Velàsquez case, judgment of November 25, 2000 the Court has considered the Guatemalan legislation that it was insufficient to protect the right to life, in accordance with the provision of article 4 of the American Convention in any circumstance in during internal conflicts. It was also unable to order that the injured parties should begun the procedure for the restitutio in integrum (article 63 (1)) 157, as the consequence of the violation of the rights mentioned as a proves in the Court. The case is concentrated in a difference between a State and 157See: 1. Trujillo Oroza vs. Bolivia case. Reparations (article 63 (19)), American Convention on Human Rights), judgement of February 27, 2002. 2. Las Palmeras case v. Colombia, judgement of November 26, 2002. 3. El Caracazo case v. Venezuela, reparations, judgement of August 29, 2002. 4. Bàmaca Velàsquez vs. Guatemala case. Reparations, judgement of February 22, 2002. 5. Cantoral Benavides case, reparations, judgement of December 3, 2001. The Advisory Power of the Ιnter American Court 89 International and European Union legal Matters January, 2016, no.1 an individual. The Commission stated that the purpose of the application was for the Court «to decide whether the state has violated the rights of Efrain Bàmaca Velàsquez». The violated rights is concentrated, in toto, on a right to juridical personality, a right to humane treatment, a right to personal liberty, a right to a fair trial, a freedom of thought and expression, a right to judicial protection andfor the first time-is mentioned that the court should consider as violated rights elevated from the common article 3 of the Geneva Conventions and also articles 1, 2 and 6 of the inter–American convention to protect and punish torture. The court has indicated that should have the obligation to investigate with serious manner. Investigations which have an objective a reassumed by the state as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victims. The torture shall be understood to be any act intentionally performed where pain, suffering, punishments shall be understood like an intentions against the personality of the victim which wanted to diminished the physical and mental capacity. The Court in relation of the torture has declared that: «in proceedings on human right violations the State’s defense cannot rest on the impossibility of the plaintiff to obtain evidence that, in may cases, The Advisory Power of the Ιnter American Court 90 International and European Union legal Matters January, 2016, no.1 cannot be obtained without the state’s cooperation (…)»158. In the period of procedure until the final judgment the inter– American Commission has requested the adoption of provisional measures under provisions of article 63 (2) of the American Convention and article 25 of the rules of procedure. In the evaluation of evidence the Court has declared that: the international protection of human rights should be confused with criminal justice. When States appear before the Court, they do so no defendants in a criminal proceeding, since the Court does impose punishment on those responsible for violating human rights. Also the Court has declared that any person deprived of liberty has the right to live in condition of detention that «are compatible with his personal dignity, the state must guarantee his right to life and to humane treatment (…)». In relation of common 158The judge A.Cançado Trindade in a separate opinion of the other judges has declared that: «(...) in both the cantoral Benavides case and present Bàmaca Velàsquez case, the court has established, inter alia, the violation of aticle 5 (2) of the American convention, in virtue of the tortures suffered by the direct victim. The prohibition of cruel, inhuman or degrading treatment, in the terms of the same article 5 (2) of the American convention, retains relevance, as recognized by the court the present judgement, for the sufferings undertaken by the indirect victims, the close relatives of mr. Bàmaca Velàsquez. The prohibition of torture as well as cruel, inhuman or degrading treatment, under the American convention and other human right treaties, is absolute (...)». In relation of the crime against torture the judge Kamàrez has declared: «(...) the difference between torture and other acts assembled under article 5 (2) of the convention, is not to be found in the pre–ordained and deliberate nature of some of them, because, generally, they all have these characteristics, or in the purpose for which they are inflicted may also be common to all. The description of torture contained the conventions on this subject–the universal and the american–off elements that also characterize cruel and inhuman treatment (...)». The Advisory Power of the Ιnter American Court 91 International and European Union legal Matters January, 2016, no.1 article 3 of the Geneva conventions 159 the Court is of the opinion that the violations committed and justified, provided during the procedure had not committed from a guerilla movement and the Court has insisted, that: «when a state faces a rebel movement or terrorism that truly threatens it is independence or security, it may restrict temporarily suspend the exercise of certain human rights (…)». The article 3 of the Geneva Conventions constitutes is interpreted under the provisions of the American Conventions and based on the general norms that applied to international humanitarian law. The reference of the article 3 common of the Geneva Conventions declares in this case the meaning of the State responsibility (Peru) responsible for the violation of international Treaties and certain omissions and not completed acts reinvigorated the human violates which protected the individual, such as the 1949 Geneva convention. The Court has decided, in unanimous, that should order an investigation to determine the persons responsible for the human rights violations, to remedy the damages caused from the violations and the State that had violated the 159Article 3 common to the 1949 Geneva conventions declared: «(...) in the case of armed conflict not of an international character occurring in the territory of one of the high contracting parties, each party to the conflict shall be (...) apply, as a minimum, the following provisions: (...) the following acts are and shall remain prohibited at any time and in any place whatsoever (...): a) violence to life and person (...), b) taking of hostages, c) outrages upon personal dignity, in particular humiliation and degrading treatment, d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a constitutes court, affording all the judicial guarantees (...)». The Advisory Power of the Ιnter American Court 92 International and European Union legal Matters January, 2016, no.1 right to personal liberty embodied in article 7 of the American convention of human rights. 4.Article 64 (2) of the Convention provides that «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». This provision enables all OAS member States, and not only the States parties to the Convention, to ask the Court to determine whether provisions of their domestic laws conform to the obligations they assumed in the Convention or in the other human rights Treaties to which Article 64 (1) refers. The wording of Article 64 (2) suggests that the applicant State may only request an interpretation of its own laws rather than the laws of another State. But to the extend that Treaties ratified by a State can also be considered to be its domestic law, the State should be able to request an advisory opinion concerning their compatibility with the Convention or other human rights Treaties. One might imagine a situation, for example, in which a State is served with an extradition demand pursuant to a Treaty that is alleged to be in conflict with the provisions of a human rights Treaty. A request for an advisory opinion under Article 64 (2) concerning that the Treaty would in one sense seek The Advisory Power of the Ιnter American Court 93 International and European Union legal Matters January, 2016, no.1 an opinion regarding the State’s domestic law even though the extradition Treaty is at one and the same time an international agreement binding on other States where not may also have the status of domestic law. The reference in Article 64 (2) to «domestic laws» leaves open the question whether the phrase refers to laws actually in force at the time the advisory opinion is requested or whether it permits the Court also to deal with proposed or draft legislation. The Court had to consider this problem in the Advisory Opinion on Proposed Amendments. Here the Government of Costa Rica filed a request for an advisory opinion under Article 64 (2), asking the Court to determinate whether certain proposals to amend the Costa Rican Constitution then under consideration by the National Assembly were compatible with the Convention. Since the proposed amendments remained to be adopted, the Court had to decide whether draft legislation qualified as «domestic laws» under Article 64 (2). The Court answered the question in the affirmative and ruled the request admissible 160. The Court is of the 160Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, Advisory Opinion N° OC-4 84 of Jan. 19, 1984, Inter-American Court of Human Rights, ser. A: Judgments and Opinions, N°. 4 (1984). Also the Proposed Amendments related to articles 14 and 15 of the Costa Rican Constitution, which govern the acquisition of Costa Rican nationality. The amendments sought to make it more difficult to acquire that country’s nationality by imposing longer residency requirements and prescribing additional qualifying standards and examinations. D. J. HARRIS and S. LIVINGSTONE, The Inter-American System of Human Rights, Oxford, Clarendon Press 1988. L. B. SOHN, International Organization and Integration. The Advisory Power of the Ιnter American Court 94 International and European Union legal Matters January, 2016, no.1 opinion: «By unanimous vote, that the advisory jurisdiction of the Court can be exercised, in general, 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 be bilateral or multilateral, whatever be the principal purpose of such a treaty, and whether or not non-member States of the Inter-American system are or have right to become parties thereto». And secondly, by unanimous vote, that, for specific reasons explained in a duly motivated decision, the Court may decline to comply with a request for an advisory opinion if it concludes that, due to the special circumstances of a particular case, to grant the request would exceed the limits of the Court’s advisory jurisdiction for the following reasons, inter alia: because the issues raised deal mainly with international obligations assumed by a nonAmerican State or with the structure or operation of international organs or bodies outside the Inter-American System; or because granting the request might have the effect of altering or waking the Annotated basic documents of international organizations (student edition). Dodrecht–BostonLancaster, M.Nijhoff 1986. T. BUERGENTHAL, The Inter-American system for the protection of Human Rights. Edited by Theodor Meron, Oxford 1985, pp. 439-494. F. V. GARCIA AMADOR, Organization of American States in legal advisers and international organization, Dobbs Ferug, New York 1966, pp. 105-109. C. HONEGGER., Friedliche Streitbeilegung durch regionale Organisationen: Theorie und Praxis der Friedenssicherungung Systeme der OAS, der Liga der Arabischen Staaten und der OUA, im Vergleich, Claude Honegger–Zürich Verlag 1983, pp. 199 ss. T. BUERGENTHAL, International Human Rights law and Institutions: Accomplishments and Prospects, in «Washington Law Review», 1988. The Advisory Power of the Ιnter American Court 95 International and European Union legal Matters January, 2016, no.1 system established by the Convention in a manner detrimental to the individual human being. 5.Each of the requests for an advisory opinion filed to date under article 64 (1) has produced amicus curiae briefs from non governmental human rights organizations. The Convention, the Statute of the Court and its Rules of Procedure are silent on the issue(s) of amicus briefs, mentioning them neither in connection with contentious cases nor in connection with advisory proceedings article 34 (1) of the Rules of procedure does contain some language, however, that has a bearing on the subject161. It reads as follows: «The Court may, at the request of a party or the delegates of the Commission, or proprio motu, decide to hear as a witness, expert, or in any other capacity, any person whose testimony or statements seem likely to assist it in carrying out its function». Although this provision applies to contentious proceedings, it can also be applied to advisory proceedings. Since the provision authorizes 161«(...) the commission stated that, while the court had referred to the presentations made by the amici curiae in to way that it had taken them into consideration; much less, that it had used their arguments to motivate the judgement. This reference was therefore merely by way of information. The court considers that the state’s sixth request is outside the scope of interpretation of judgment as contemplated in article 67 of the american convention and article 58 of the rules of procedure. (...)». Abstract for the role of the amici curiae from the Cestri Hurtado case. Interpretation of the judgement on the merits, article 67 of the American convention on human rights, judgement of January 28, 2000. The Advisory Power of the Ιnter American Court 96 International and European Union legal Matters January, 2016, no.1 the Court motu proprio to hear persons whose statements might assist it in carrying out its function, it can also be argued that it permits the receipt of amicus briefs. The Court has not expressly addressed this issue. But, without commenting on their admissibility, it has formally noted the receipt of these briefs in each of the opinions rendered under Article 64 (1). Implicit in this action is the holding that such briefs are admissible. It should be noted, however, that the admissibility of these briefs was not challenged in any of these proceedings. Such challenges are more likely to be made by the States parties to contentious cases, where private individuals and organizations may try to compensate for their lack of formal standing before the Court by filing amicus briefs. How the Court will deal with these briefs remains to be seen; no amicus has thus far been submitted in a contentious case and none was filed in the one article 64 (2) proceeding decided by the Court. Also, the Court has not as yet had to rule on a formal request by a non governmental organization or individual for permission to make an oral presentation in an article 64 (1) proceeding. It is not clear whether or under what circumstances the Court would grant such a request. Article 34 (1) of its Rules of Procedure appears to empower the Court to do so in cases where this would assist the tribunal «in carrying out its The Advisory Power of the Ιnter American Court 97 International and European Union legal Matters January, 2016, no.1 functions». A related question arose in an Article 64 (2) proceeding. Costa Rica asked the Court to review the compatibility with the Convention of certain proposed amendments to its Constitution. The Government of Costa Rica opposed the amendments, but the draft legislation had the support of various Costa Rican legislators who convinced the Government to request the advisory opinion under Article 64 (2). Had this been an Article 64 (1) proceeding, the Court would have been required under its Rules of Procedure to transmit copies of the Costa Rican request to all OAS member states and organs, to invite them to present their written observations and to fix the format of the oral proceedings. No comparable requirements are included in the Rules of Procedure for Article 64 (2) proceedings, presumably because it was assumed that other States and OAS organs would have little interest in the domestic law issues arising in such proceedings. Leaving aside questions about the soundness of this assumption and recognizing that the Court has the authority to give the requisite notice to the OAS member States and organs whenever this appears appropriate, no such notice was given in Proposed Amendments and none was requested. But because the legislative and executive branches of Costa Rica held different views on the issues raised in the proceedings, as did various The Advisory Power of the Ιnter American Court 98 International and European Union legal Matters January, 2016, no.1 other public and private entities in the country, the Court decided on its own motion to invite interested groups to submit their views and to be heard by the Court. Five representatives, selected by the Court in consultation with the Government of Costa Rica 162, were subsequently heard in the only public session held in the case163. Also, under the article 43 from the Rules of Procedure of the Court, items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto and, where appropriate, in the communication setting out the preliminary objections and in the answer thereto. Should any of the parties allege force majeure, serious impediment or the emergence of 162The assumption that article 64 (2) proceedings are basically «domestic» and therefore of no interest beyond the borders of the applicant state overlooks the fact that the Court’s task here is to interpret the Convention or other human rights treaties; it is not its function in Article 64 (2) proceedings to interpret domestic law. Other states and OAS organs may therefore have as much of an interest in Article 64 (2) proceedings as in those field under paragraph 1 and they should routinely receive the requisite in both instances. T. BUERGENTHAL, The advisory Practise of the Inter-American Court of the Human Rights, in «American Journal of International Law», 1985, pp. 36-38. J. KOKOTT, No impunity for Human Rights Violations in the Americas (Inter-American Commission on Human Rights rulings on Argentinian, Uruguayan and Salvadoran Amnesty laws), in «Human Rights Law Journal», 1993. 163Rules of procedure, Art. 52. The assumption that article 64 (2) proceedings are basically «domestic» and therefore of no interest beyond the borders of the applicant state overlooks the fact that the Court’s task here is to interpret the Convention or other human rights treaties; it is not in function in Article 64 (2) proceedings to interpret domestic law. Other states and OAS organs may therefore have as much of an interest in Article 64 (2) proceedings as in those field under paragraph 1, and they should routinely receive the requisite notice in both instances. R. PINTO, Règionalisme et universalisme dans la protection des droits de l’homme, in International protection of Human Rights, Stockolm 1968, pp. 177. C. TRINDADE, La protection des droits èconomiques, sociaux et culturels: èvolutions et tendances actuelles, particulièrement à l’èchelle regionale, in «Revue Gènèrale de Droit International Public» 1990, pp. 913 ss. The Advisory Power of the Ιnter American Court 99 International and European Union legal Matters January, 2016, no.1 supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time than those indicated above, provided that the opposing party is guaranteed the right of defense164. 6.The Convention does not establish a formal procedure to enforce the rulings of the Court against recalcitrant States. One provision, however-Article 65-does bear on this subject. It reads: To each regular session of the General Assembly of the Organization of American States the Court shall submit, for the Assembly’s consideration a report on its work during the previous year. It shall specify, in particular, the cases in 164See: Durand and Ugarte case, judgement of August 16, 2000. The inter–American court has called to decided whether the state of Peru that had violated the following articles of the convention: article 1 (obligation to respect rights); art. 2, (duty to adopt the clauses of national law), art. 4, (right to life), art. 7 (6) (right to personal freedom, art. 25 (1), (judicial protection) and art. 27 (2) (Suspension of guarantees). The court has decided the declaration that the state has violated articles of the American Convention of Human Rights, decides that the state must compensate damages caused by the violations, decided to open the stage of reparations. In particular it was cleared a dissenting opinion from the judge De Roux Ren, which has declared that: «(...) I regret to withdraw myself from the transcribed conclusion. (...) this court has stated the following three criteria: a) an international court of human rights has significant scope of flexibility when assessing evidence, according rules and based on experience, b) international courts can largely base their decisions on circumstantial or indirect evidence, on presumptions as long as these means to give rise to solid on the acts, c) in processes of violations of human rights the state defense can not be grounded on the failure of the plaintiff to gather evidence, because very frequently these can not be obtained with the cooperation of the State itself, which precisely has the available the necessary resources to clarify the acts that have taken place territory (...) it is possible that Duran Ugarte and Ugarte Rivera had been shot first without to understand what the situation was. It is also possible that they undergone all the stages and manifestations of a chain of horror in Frointòn prison and that they died several days after the uprising in the most terrible physical and mental atrocities (...)». The Advisory Power of the Ιnter American Court 100 International and European Union legal Matters January, 2016, no.1 which a State has not complied with its judgments, making any pertinent recommendations. This provision enables the Court to inform the OAS General Assembly of situations involving noncompliance with its decisions and it permits the Assembly to discuss the matter and to adopt whatever political measures it deems appropriate. Although Article 65 speaks of «regular sessions» of the Assembly, that does not mean that the matter of noncompliance by a State may not be raised at a special session of that body, either at the request of a member state or following consideration by the OAS Permanent Council. Since the Council acts for the Assembly when it is not in session, the Court would appear to be free to call the Council’s attention to cases that might justify emergency measures. This would be true, in particular, in situations involving threats of non compliance with provisional measures adopted by the Court. Such a situation, in turn, might prompt the Council to convene a special session of the Assembly or to take some other measures it deems appropriate. This progress in the Commission must go hand with a strengthening of the Inter-American Court of Human Rights. The Court must be able to request the Commission to expand investigations and pursue the evidence it considers justified to make a more objective assessment of the case before it. Another basic element in the Court’s The Advisory Power of the Ιnter American Court 101 International and European Union legal Matters January, 2016, no.1 strengthening has to do with the ongoing nature of his work. To the extend that citizens are given greater access to the system, countries are showing increasing readiness to have cases settled, and the Commission continuous to grow stronger, the Court will have to be provided with the necessary resources to meet more often. Moreover, pursuant to the mandate from the Miami Summit for a human rights system with a preventive capacity, a technical study must be conducted of the requirements and necessary steps for providing the Court-within balanced, clear, and precise rules-with the power to adopt provisional measures for human rights protection in those cases where, because of their nature, they go beyond the possibilities of national systems. The development of this strategy of institutional strengthening and expansion of the legal capacity of the Inter-American human rights system will require earmarking of more funds within the Organization so as to able to finance the technical work of experts and a broader range of activities for the Commission and the Court. The expansion of the legal capacity of the Commission and the Court will call for a Secretary and experts in the area of human rights with experience, independence, with no political influence from member States or any bodies outside the organization. In the Miami Declaration the Governments pledge to develop The Advisory Power of the Ιnter American Court 102 International and European Union legal Matters January, 2016, no.1 «programs for the promotion and observance of human rights, including educational programs to inform people of their legal rights and their responsibility it respect the rights of other» 165. Resort to the advisory jurisdiction of the Court, whether it by the Commission, the other OAS organs, or the member States, has a number of advantages that its contentious jurisdiction does not provide. Although the Court’s decision in a contentious case is binding, which is of course not true of an advisory opinion that distinction may not be of great practical significance. Compliance and non compliance by states with their international obligations depend less on the formal status of a judgment and its abstract enforceability than on the legitimacy of specific governmental conduct. This latter factor has an important bearing on the perception that governments have about the political costs of noncompliance166. As a result, States may have find it is difficult in some cases to disregard an advisory opinion as a binding decision. At the same time, it is easier for governments to comply with advisory opinions because such rulings do not stigmatize them as violators of human rights, which in turn diminishes the domestic political cost of 165OEA/Ser.P AG/RES.1664 (XXIX–O/99) 7 June 1999. See also: Colotenango case, Provisional measures in the Matter of Guatemala, Order of the Court of February 1, 1996 Inter-Am. Ct.H.R. Carpio Nicolle Case, Provisional Measures in the Matter of Guatemala, Order of the Court of 1 February 1, 1996 Inter–Am. Ct.H.R. 166R. FISHER., Improving Compliance with International Law, 1981, pp. 105. The Advisory Power of the Ιnter American Court 103 International and European Union legal Matters January, 2016, no.1 compliance. The Court may therefore be able to play an important role, even if its contentious jurisdiction is not widely accepted by the States parties, provided that its advisory jurisdiction is resorted to by OAS organs and by the member States167 . We have seen the advisory and contentious jurisdiction of the court but we must observed also the adoption of measures of protection under the article 63 (2) of the American Convention in cases of «gravity and urgency»168. Provisional measures have been ordered and discussed from the court in relation of the protect of human rights protection like the right of life and a human treatment of witnesses in the cases of Velàsquez Rodriguez, in 1988, in Suàrez Rosero 169, in 1996, in Reggiardo Tolosa, 1994, ecc. The court has not requested from the Commission a substantial 167C. DUNSHEE DE ABRANCHES, La Corte interamericana de Derechos Humanos, in La Conveciòn Americana de Derechos Humanos, OEA, 117, 1980. H. WALDOCK, General Course on Public International Law, in «Recuil des Cours», 106, 1963, pp. 50 ss. T. BUERGENTHAL, International Human Rights law and institutions: Accomplishments and prospects, in «Washington Law Review», 1988, pp. 218–220. D. SHEININ, The Organization of American States. International Organizations Series, Vol. II, Oxford 1995, 114-116. 168J. M. PASQUALUCCI, Medidas provisionales en la corte interamericane de derechos humanos: Una comparaciòn con la corte international de Justicia y la corte europea de derechos humanos, in «Revista del Instituto Interamericano de Derechos Humanos», 1994, pp. 50 ss. 169According to the arguments in case of Mr.Suàrez Rosero the court ordered the government of Ecuador to pay the costs and expenses and to remove his name from both the register of criminal records as well as form the register maintaining the National council on narcotic drugs and psychotropic substances.. The court «has recognized the difficulty of same receipts and other documents in view of the living conditions of the families of victims and has ordered the reimbursement of expenses in the past, even in the absense of their proof (...)». The Advisory Power of the Ιnter American Court 104 International and European Union legal Matters January, 2016, no.1 demonstration that the facts relating to the procedure of court decision are true, but has proceeded rather on the ordering provisional measures of protection170. 7.The original rules of procedure were established after the adoption of the Court in 1980. In this period the inter-American Court has had virtually no experience in the handling of contentious cases. The rules of procedure have based on the basis of the European Court of human rights, which had found inspiration in the procedure set forth in the rules of the international Court of justice. Only the Commission and the States parties have the right to submit a case to the Court 171. The Convention also referee to the injured party, thus the alleged victims. 170I/A Court HR. Case of Brewer Carías v. Venezuela. Order of Inter-American Court of Human Rights of August 20, 2013; I/A Court H.R. Case of Rodríguez Vera et al. v. Colombia. Order of the Inter-American Court of Human Rights of May 30, 2013; I/A Court H. R., Case of Mendoza et al. v. Argentina . Order of the of the Inter-American Court of Human Rights of May 14, 2013; I/A Court H.R. Case of Brewer Carías v. Venezuela. Order of the Inter-American Court of Human Rights of November 29, 2012. 171In case Cestri Hurtado, judgement 1999, the court has made an objection that when the commission received and admitted the complaints on March 1997 «had not yet been exhausted the domestic remedies (the same system like the European Court of Human Rights) (...) and that there was no arbitrary imprisonment of Mr.Cestri Hurtado by the order of detention incorporated the requirements of a judicial resulting from a customary proceeding, a consistent decision and written, reasoned warrant rendered by a jurisdictional, constitutional autonomous and exclusive institution (...)». In particular Mr. Hurtado was accused of fraud, negligence, disobedience and crimes against the duty as a dignity of his position. The Peruvian state is responsible or the failure to comply with decision on habeas corpus that was rendered in favour of Mr. Hurtado in a final and unappealed decision by the public law chamber of the Superior court of Limes. The Advisory Power of the Ιnter American Court 105 International and European Union legal Matters January, 2016, no.1 The rules of procedure of 1996, which enter into force in 1997 «has presents their own arguments and evidence in an autonomous way» for the victims, before the Court recognized the stage of reparations. The main body of the procedures is based to claims involving individual complainants against respondent States. The second statute of the rules of procedure was adopted in 1991. It has a character of flexible text which have introduced a specific aspects incorporated into subjects like a composition of the Court and on the presentation of evidence at the reparation phase of proceeding and for supervision of compliance with the judgment. In our days the Court based on the experience of the past and accumulation of contentious jurisdiction has decided in 1996 the presentation of the complaint (demanda) before the Court is clearer and simpler, so as to avoid difficulties that have arisen in practice. The Court has not the characteristics of an appellate tribunal of the Commission’s decision or an international supervisory organ under the American Convention. In the case of the Mayagna (Sumo) Awas Tingni Community case the Court was based on the article 32 of the rules of procedure and the Commission presented this case for the Court to decide whether the state v. Nicaragua did not ensure an effect response to the community’s protests regarding its property rights. The Commission has used in the The Advisory Power of the Ιnter American Court 106 International and European Union legal Matters January, 2016, no.1 pre-procedural that the State: obligation to respect rights, domestic legal effects, right to judicial protection of the Convention did not demarcated the communal lands of the Awas Tingni Community. The main arguments submitted by the State is an brief indicate that testimony of expert witnesses offered could contribute to remedy: a) damages caused to property rights of indigenous communities; b) damages to land claims of the rest of the indigenous communities of the coast of Nicaragua; c) the interest of the State in carrying put and objective titling process lands of the indigenous communities. They have testified witnesses about the indigenous property. They said that the indigenous property is private property which belongs collectively to an indigenous community. There are also rules that confirmed the right of private property. There is the need to further definition of certain aspects to property and natural resource management. We must mentioned that the indigenous people lives from the land. The possibility of unity, of cultural preservation and reproduction and of serving physically depends on the collective, communitarian existence and maintenance of the ancient period. There is also uniformity in all countries of Latin America. Certain legislation rules accept that indigenous peoples are owners of their land and many times constitutional reforms have providing stability to indigenous The Advisory Power of the Ιnter American Court 107 International and European Union legal Matters January, 2016, no.1 peoples and in the interim countries population. Article 44 of the rules of procedure empower the Court to: a) to call expert witness with capacity which considered helpful for the case; b) request the parties to provide any evidence within their reach or statement which would be useful; c) information, opinions, reports in relation to the case should not be published without the authorization of the Court. Finally the Court has declared that: «article 25 of the Convention has established terms like the obligation of the States to offer to all persons under their jurisdiction effect remedy acts that violate their fundamental rights (…) it is established in the constitution or in the law it should be formally admissible, but it must be rely appropriate to establish whether has been a violation of human right and to provide everything necessary to remedy (…)». In relation of the indigenous land the Court has mentioned the article 5 of the 1995 constitution of Nicaragua State which declared that: «freedom, justice, respect for the finity of the human person, political, social and pluralism, recognition of the various forms of property, free international cooperation respect for free self-determination are principles of the Nicaragua nation. The State recognizes the existence of the indigenous peoples who have the rights and guarantees set forth in the constitution, and especially those of maintaining developing their identity and culture, having their own The Advisory Power of the Ιnter American Court 108 International and European Union legal Matters January, 2016, no.1 forms of social organizations managing their local affairs, as well as maintaining communal forms of ownership autonomous regime is established in the constitution for the communities of Atlantic coast (…)». Other rules of law like the article 180 of the constitution, the law n. 28, published in October 30, 1987 in «la Caceta» n. Gazette of the Republic of Nicaragua, regulated the autonomy statute of the Atlantic coast of Nicaragua, the decree n. 16–96 of August 23, 1996, pertaining to the creation of Commission for the demarcation of the lands of the indigenous Commission of atlantic coast, the law n.14, published on January 13, 1986 in La Caceta n. 8 of the Republic of Nicaragua called «Amendment to the agrarian parties» has stabilized the existence of norms that the protection of indigenous communal property in Nicaragua is evident and respectable. The Court has decided for equitable compensation for material and moral damages, payment of cost and expenses incurred during the prosecution of the case under jurisdiction of the inter-American system. 8.The emergence of international human rights law as a branch of public international law and the acceptance of the notion that individuals have rights enforceable on the international plane without the intervention of their State of nationality have played with certain The Advisory Power of the Ιnter American Court 109 International and European Union legal Matters January, 2016, no.1 basic international law principles and assumptions. A legal system developed over centuries to regulate relations between States must make considerable conceptual adjustments to accommodate the extension of its normative reach to individuals. The Court encountered an interesting example of this problem in its Advisory Opinion on the Effect of Reservations. Here the Inter-American Commission on Human Rights sought a ruling regarding the date on which the Convention entered into force for a State that ratified it with a reservation. Two provisions of the Convention have some bearing on this issue. Article 75 declares that «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». Article 74 (2), which deals with ratification and adherence, provides that the Convention shall enter into force as soon as it has been ratified by eleven States and that «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». If this latter provision is deemed to apply to ratifications whether or not they contain reservations, then the Convention would enter into force for the ratifying State on the date of the deposit of its instrument of ratification. But if ratifications containing reservations are not governed by Article 74 (2), then the The Advisory Power of the Ιnter American Court 110 International and European Union legal Matters January, 2016, no.1 effect of a reservation will have to be determine by reference to Article 75, which in turn gives to some conceptual problems. The Commission asked for the advisory opinion because the OAS Legal Counsel determine that two States, which had ratified the Convention with reservations could not be deemed to have become parties to it on the date of the deposit of their ratifications; for them the effective date of entry into force was governed by Article 75, the Vienna Convention on the Law of Treaties. According to the legal Counsel, the relevant provisions, a ratification containing a reservation, to be effective, had to be accepted by at least one other contracting party. Moreover, the «reservation is considered to have been accepted by a State if it shall have raised no object to the reservation by the date on which it expressed its consent to be bound by the treaty, whichever is later». This interpretation of valid, would postpone by at least one year the entry into force of the convention for a state that ratified it with a reservation, and thus would deny individuals the protection of the treaty as against a state that wished to be bound by it172. 172Vienna Convention on the Law of the Treaties, art. 20 (4), UNDOC.A/CONF.39/27 (1969), reprinted in «American Journal of International Law», and in «International Legal Materials», 1969. Also the two States in question were Barbados and Mexico. Mexico ratified with a reservation to article 32 (2) of the convention, which deals with the right to partecipate in government. The Mexican reservation declared some rights guaranteed by that provision inapplicable to ministers of all religious denominations to the extend that they were barred, under article 130 of the mexican constitution, from participation in certain political activities. The first applied to article 4 (4) of the convention, which prohibits capital punishment for The Advisory Power of the Ιnter American Court 111 International and European Union legal Matters January, 2016, no.1 Serious conceptual problems arise, however, when one attempts to apply these traditional rules to human rights treaties. What does reciprocity mean in this context? Does it mean for example that if State A makes reservation to a due process provision of the treaty a national of state B, who was denied due process by State C, may not invoke that treaty clause against State C because the latter’s acceptance of State A’s reservation has modified the treaty as between them, and consequently for their national to the extent of the reservation? To ask the question is to recognize that it is founded in a concept that is basic to traditional international law. That the right of the individual under international law derive from and is dependent on the rights of the state of his nationality. It is equally obvious, of course, that this concept conflicts with international human rights law and modern human treaties whose principal objective is the protection of the individual against his own State. The Court articulated this conclusion as follows in its advisory opinion on the effect of reservations. Modern human rights treaties in «political offenses or related common crimes» and reserved the right of Berbados to apply the death penalty. Its second reservation related to article 4 (5) of the convention, which prohibits the execution of individuals who were 16 years of age or over 70. The time they com mit the crime punishable by death. Barbados made this reservation, noting that its laws permit the execution of individuals who are over 16 and under 70. The third Barbarian reservation app lied to article 8 (2) (e) which guarantee and «inalienable rights» to Counsel. Barbados declared that its laws do not ensure such a right. Cfr. E. DE LA GUARDIA, M. DELPECH, El derecho de los tratados y la convenciòn de Viena, Buenos Aires, La Ley, 1970. P. REUTER, Introduction au droit des traits, 2nd edition, Paris, PUF, 1985. The Advisory Power of the Ιnter American Court 112 International and European Union legal Matters January, 2016, no.1 general and the American Convention in particular are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the basic rights of individual human beings, irrespective of their nationality, other against the State of their nationality and all other contracting States. In concluding these human rights treaties the States «can be deemed to submit themselves to a legal order within which they for the common good, assume various obligations not in relation to other States, but towards all individuals within their jurisdiction (…)». Viewed in this light and considering that the Convention was designed to protect the basic rights of individual human beings irrespective of their nationality, against States of their own nationality or any other State party, the Convention must be seen for what in reality it is: a multilateral legal instrument or framework enabling states to make binding unilateral commitments not to violate the human rights of individuals within their jurisdiction. If a human rights treaty can in fact be characterized as being basically little more than an instrument that enables States to make binding unilateral commitments not to violate the human rights of individuals within their jurisdiction, then the concept of reciprocity a critical aspect of bilateral and multilateral government-to-government treaty The Advisory Power of the Ιnter American Court 113 International and European Union legal Matters January, 2016, no.1 making, loses much of its relevance for the application and interpretation of human rights instruments. This analysis led the Court to declare that «it would be manifestly unreasonable to conclude that the reference in article 75 to the Vienna convention compels the application of the legal regime established by article 20 (4), which makes the entry into force of a ratification with reservation dependent upon its acceptance by another State»173. Accordingly, the reference in article 75 to the Vienna Convention had to be interpreted «as an express authorization designed to enable States to make whatever reservations they deem appropriate, provided the reservations are not incompatible with the object and purpose of the treaty»174. The Court’s interpretation permitted it to apply the provisions of 173See: Cantos case, judgement of November 28, 2002, in particular in report n. 75/98 the Commission decides: a) to recommend that the State of Argentina re-establish all the rights of Josè Marìa Cantos and, among other measures, provide adequate reparation and compensation for the above-mentioned violations (...), b) to transmit this report to the State and grant it a period of two months to adopt the necessary measures to comply with the preceding recommendation. In accordance with the provisions of article 50 of the american Convention, the State is not authorized to publish this report, c) to notify the petitioners of the adoption of a report in this case under article 50 of the American Convention. 174L. MIGUEL DIAZ, El sistema interamerican: entre el unilateralismo y la inoperanica in contemporary issues, in International law essays in honor of Louis B. Sohn. Edited by Thomas Buergenthal (Kehl–Stransbourg–Arlington, 1984), pp. 407–426. Annual report of the inter– American commission on human rights 1990–1991 OEA/Ser.L/V/II.79, rev. 1 DOC.12, 1991, pp. 553. D. FORSYTHE, The internationalization of human rights, 1991, pp. 11 ss. F. STEWART, Basic needs strategies, human rights and the right to development, in «Human Rights Quarterly», 1989, pp. 347 ss. A. H. ROBERTSON, Human rights in the world, 2nd ed., (New York: St. Martin’s 1982), pp. 164. The Advisory Power of the Ιnter American Court 114 International and European Union legal Matters January, 2016, no.1 article 74 and to hold that the Convention must be deemed to enter into force ratifying or acceding to it, with or without a reservation on the date they deposit their instruments of ratification or adherence. The protection of the Convention consequently extends to all individuals within the jurisdiction of a State as soon as it has indicated its adherence. This result is consistent with the character of modern human rights instruments175. 9.It is much too early, of course, to tell whether and how well the inter-American Court of Human Rights will be able to discharge its mission after the new «Rules of procedure», in the year 1997 and 2003. The answer cannot be divorced from the political climate of the Americas and the attitude of American governments towards human rights in general. But even when that climate is favorable, which it was for a while but may be longer, such will still depend on the willingness of governments to accept the Court’s jurisdiction and on the willingness of the Commission to utilize the Court. If the Commission were to resort to the Court’s advisory and 175OEA/Ser.G,Cp/doc.1492/84 (Sept. 10, 1984). It is important in this connection to note that when Argentina on Sept. 5, 1984 deposited an instrument of ratification of the convention containing a reservation, the OAS Secretary General, on the advise of the new legal adviser, decided that Argentina has become a party to the convention on that date. Consistent with the Court’s advisory opinion, the fact that ratification contained a reservation was not to require delaying the entry into force of the convention for Argentina. The Advisory Power of the Ιnter American Court 115 International and European Union legal Matters January, 2016, no.1 contentious jurisdiction and do so in a judicious and creative manner, it could play an important role in strengthening the institutional framework and constitutional legitimacy of the entire inter-American human rights system. That the system urgently needs to be reinforced and that it would greatly benefit, particularly now, from judicial reaffirmation of its constitutional legitimacy can hardly be doubted. The Commission more than any other OAS organ, has the legal authority and professional competence to lead this effort. Whether it also has the necessary wisdom to do so remains to be seen. It is clear, however, that if the commission fails to refer cases and requests for advisory opinions to the Court, a great opportunity will have been missed in the struggle to make respect for human rights an integral part of the inter-American political agenda. The study of the advisory jurisdiction of the Inter-American Court of Human Rights and of manner in which the Court has exercised it cannot, of necessity yield more than some tentative conclusions the Court after all has been in existence only since 1979. In that time it has had an opportunity to render no more than for advisory opinions and to decide one contentious case. The result can hardly be called a substantial body of law, although by international standards, said to say, the number of opinion is quite The Advisory Power of the Ιnter American Court 116 International and European Union legal Matters January, 2016, no.1 respectable. More important, however is the fact that the request for advisory opinions submitted to the Court have enabled it to define the scope of its advisory that are basic to the development of the international law of human rights. In delineating the scope of its advisory jurisdiction and specifying the rules applicable to it, the Court has sought to avoid burdening the advisory process with formalistic and time-consuming obstacles. Instead, its practice reflects the view that, to be useful and effective, the advisory process has to be expeditious and capable of proving OAS organs and member States with legally sound judicial rulings conceived in an atmosphere that inspires trust in the deliberative and interpretative processes. The Court has interpreted its advisory jurisdiction broadly, while reserving the right to restrict its scope to safeguard the rights of individuals and to maintain the integrity of the protective systems established by the conventional whether the scope of the Court’s advisory jurisdiction will expand further or begin to contract is closely related to the perceived needs of the inter-American system for the protection of human rights. On the other hand, the advisory process has the advantage, and this is particularly so in the human rights context, of making it politically easier for a government to comply with advisory opinions: by their very nature, they do not The Advisory Power of the Ιnter American Court 117 International and European Union legal Matters January, 2016, no.1 stigmatize the state as a lawbreaker and permit a delinquent government to make its compliance appear to be a voluntary act. The advisory opinions that it has thus far rendered have given the Court, as we have seen, an opportunity to address some of the doctrinal problems that result the emergence of international human rights law as a branch of public international law. The basic premise of the international law of human rights is not all that easily accommodated within a system of law geared to interstate relations and based on the concept of the State as exclusive subject of rights and obligations assumption about treaty interpretation, about the prerogatives of States parties to international agreements, about the functions of international judicial institution an and many others enquire conceptual rethinking and doctrinal adjustments when the context is the international protection of human rights rather than traditional international legal relations among States. We have touched not only some of these problems in this article, we have merely scratched the surface of the conceptual difficulties that exist and that are likely to arise in the future in this field. The Court’s opinion also indicate that, notwithstanding the historical baggage encumbering traditional international law, international tribunals can contribute to the restructuring and revitalization of a legal system whose relevance today The Advisory Power of the Ιnter American Court 118 International and European Union legal Matters January, 2016, no.1 depends in large measure on its ability to protect the individual from massive abuse by governmental authorities. We have also addressed the need to depoliticize the inter-American system by minimizing discretion and increasing predictability and consistency in the Commission’s practice through the application of public rules and guidelines176. However, even with substantial reform, those involved in the Inter-American system must be attentive to possible abuse. States should not be allowed to ensure the privileges accorded to them by the convention, such as the exhaustion of domestic remedies requirement. Similarly, states should not distort the advisory authority of the court. Such was the case when Argentina and Uruguay, both condemned by the Commission for legislation granting blanket amnesties for past human rights abuses, requests an advisory opinion on question related to the Commissions decisions in these cases, instead of taking their cases as contentious matters before the Court177. Fortunately to the issues of admissibility, exhaustion of domestic remedies and confidentiality, the commission should examine its rules and procedure with the aim of reforming the system to ensure full 176PASQUALUCCI J.M., The Practice and procedure of the Inter-American Court of Human Rights, Cambridge University press, 2013. 177See also the adivosry opinion: I/A Court H.R., Rights and guarantees of children in the context of migration and/or in need of international protection. Advisory Opinion OC-21/14 of August 19, 2014. Series A No.21. The Advisory Power of the Ιnter American Court 119 International and European Union legal Matters January, 2016, no.1 respect for an equality of arms and create equity between the parties. Perhaps a central issue still requiring attention concerns the enforceability of the commission’s decisions and verification that they have been respected. Because several American countries are also parties to the optional Protocol of the International Covenant on Civil and Political Rights, it may be useful in closing to identify the advantages of an individual petition under the American system rather than under the optional protocol. The former protects a broader range of substantive rights, derogations from those rights by a State are more limited, and admissibility requirements for an individual petition are less stringent. The inter-American Commission also has broader powers of inquiry, including the option of on-site investigation and adversarial hearings and it may be more willing to take precautionary measures to avoid potentiality irreparable harm in appropriate situations. There exists a friendly settlement procedure applicable to the American convention and decisions of the inter-American Court are legally binding on those governments that have recognized the Court’s jurisdiction. Petitions brought under the American system are likely to receive greater publicity than complaints to the human rights committee and governments appear to be more disposed to cooperate with a regional organization is resolving human rights problems. 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