Advisory opinion OC/26 2020 of the Inter-American Court of Human Rights
denunciation of the American Convention, Ius cogens and the law of treaties.
In November 9th 2020, the Inter-American Court of Human Rights (IACtHR) rendered its advisory opinion “OC/26 2020” regarding “the denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and its effects on State obligations in the matter of human rights”, as requested by Colombia in May 2019. This blog post remarks the connection between the Inter-American system and several concepts of public international law that resulted from the advisory opinion. The post will review the answer of the Court as a response to the acts of resistance of several States against the system, the debate around ius cogens in the opinion and the fundamental relationship between the functioning of the regional protection body and the law of treaties.
One may sketch some reasons that prompted the request of the opinion: the recent acts of resistance to the Inter-American system by States that either denounced the American Convention or, after this denunciation, have defied the system and the compliance to its judgments by menacing with, or effectively by leaving the OAS itself. The questions elevated by the State of Colombia included:
“QUESTION ONE: In light of international, conventional and customary law, and, in particular, of the American Declaration of the Rights and Duties of Man of 1948: What are the human rights obligations of a Member State of the Organization of American States that has denounced the American Convention on Human Rights?
SECOND QUESTION: In the event that said State also denounces the Charter of the Organization of American States and seeks to withdraw from the Organization, what are the effects that said denunciation and withdrawal have on the obligations referred to in the FIRST QUESTION?
THIRD QUESTION: When a series of serious and systematic human rights violations occurs under the jurisdiction of a State of the Americas that has denounced the American Convention and the OAS Charter,
1. What human rights obligations do the other OAS member states have?
2. What mechanisms do the OAS member states have in place to make these obligations effective?
3. What mechanisms for the international protection of human rights can persons subject to the jurisdiction of the denouncing State resort to?”
Being the 4th occasion in history in which Colombia has requested an opinion to the Court and considering that simultaneously the State was advancing another advisory proceeding (namely, the request regarding the figure of indefinite presidential re-election, a situation that already led to political confrontation inside OAS for the recent developments in Bolivia), it is important to note the strategic use of the advisory jurisdiction recent cases.
Multilateral relations in the region have been affected by the humanitarian crisis in Venezuela, the most recent State to both denounce the Convention and to leave the OAS, a situation that has left Colombia in the position of being the State that has received the biggest number of migrants from Venezuela and being in need to protect their human rights but also in the urgent need to inquire for innovative ways to invoke Venezuela´s responsibility. This situation seems to shape the two-folded nature of the request, that seeks answers, first, regarding the remaining nexus with the System of a State that is trying to detach from all its human rights obligations in the region and, second, regarding the obligations of the States that remain in OAS vis-à-vis the State that left the Convention, in the context of a population that has, arguably, lost the individual mechanisms to active the System against their own State.
The OC/26 and resistance to the Inter-American System by denunciation of the American Convention.
This advisory opinion approaches several issues related to the interpretative connection between the IACtHR and public international law, the current backlash and resistance to the system by States that defy the implementation of its judgments and its stability by denouncing the Convention.
Among the principal conclusions achieved by the Court, we can highlight the notion that the Declaration must be understood as a legally binding instrument applicable to the OAS States that have not ratified the Convention, and, in turn, it has a “return effect”, becoming the principal instrument to be applicable to the States that have denounced the Convention and after this denunciation has become effective. In this same line, the Court expands the notion, already developed by the Inter-American Commission, that when the Declaration is applicable, it must be applied along with jus cogens, customary law acknowledged in the field, and the evolving interpretations of the American Convention and the case-law emanating from it, to give effective and contemporary content to the Declaration.
This is a very relevant development because the standard set by the Court is, that the American Declaration, when applied to a State that has denounced the Convention, must be applied under an evolutionary interpretation of current human rights norms, including the current interpretations of the Convention and its jurisprudential developments.
As a result of the reference by the Court in the OC/26 to Ius cogens and its applicability along with the declaration and the Convention, paragraphs 96 to 110 of the opinion must be highlighted because the Court correlates its concept of corpus iuris with the sources that have developed ius cogens in other fields of international law, namely, art. 53 of the Vienna Convention on the Law of the Treaties and the International Law Commission in its Draft Articles regarding State responsibility.
The IACtHR, following the remarkable exercise proposed by the ILC in its Fourth report on peremptory norms of general international law (jus cogens) by Special Rapporteur Dire Tladi in January 2019 included in OC26 its own non-exhaustive list of norms that have achieved the status of ius cogens in the case-law of the regional body (para. 106):
· prohibition of discrimination;
· Absolute prohibition of all forms of torture, both physical and psychological;
· Prohibition of cruel, inhuman or degrading treatment or punishment;
· Prohibition of the forced disappearance of persons;
· Prohibition of slavery and other similar practices;
· Principle of non-refoulement, including the prohibition of rejection at the border and indirect return;
· Prohibition of committing or tolerating serious human rights violations within a massive or systematic pattern, including extrajudicial executions, disappearances forced and torture; and
· Prohibition of committing crimes against humanity and the associated obligation to criminalize, investigate and punish these crimes.
Inter-American Practice and Principles regarding Treaty denunciation
Additionally, this advisory opinion is relevant for research purposes on the law of treaties since the Court explores the relationship between the System and treaty interpretation and denunciation. Several amici curiae received by the Court, including the one submitted by Prof. Ricardo Abello-Galvis and Walter Arévalo-Ramirez, author of this short piece, and acknowledged by the Court in paras. 59 to 65 explore the existence of several Inter-American principles regarding the termination of treaties reflected in the Charter of the OAS and other instruments of the system, and the way the Convention has embraced the notions of express denunciation, deferred effect and the existence of subsequent jurisdictional and substantive obligations emanating from judgments that continue even if the State leaves the instrument.
The denunciation clause of the OAS Charter reflects the principles regarding the termination of treaties that the American States have repeatedly included in subsequent treaties, in the context of the protection of human rights, such as the American Convention in its Article 78, but also in Article 23 of the Inter-American Convention to Prevent and Punish Torture, as well as Article 21 of the Inter-American Convention on Forced Disappearance of Persons, and Article 24 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Convention of Belém do Pará. These principles are, firstly: to have a deferred effect, to avoid the sudden exit of a State from the general or specific system of protection and the immediate subtraction of a jurisdiction mechanism and secondly, to make it clear through the denunciation clause, that the events that occurred while the treaty was in force for the State, continue to be the subject of jurisdiction of the court.
The effect that the OC/26 can have in enforcing the compliance of judgments by States that have denounced the Convention or left the OAS is still to be seen, but what is clear is that the advisory opinion is already a must-read for those researching the increasing situations in which the Inter-American system has referred to public international law and treaties and legal notions developed outside the system, leaving behind its past tendency produce mostly self-referred decision.
Principal Professor of Public International Law at the Law Faculty of the Universidad del Rosario (Colombia)