The American Convention on Human Rights. Updated by the Inter-American Court
| Autor | Álvaro Paúl |
| Cargo | Professor at Pontificia Universidad Católica de Chile. Graduate from Universidad de los Andes (Chile), Master in Law (MJur) from the University of Oxford, and Philosophy Doctor (PhD) from Trinity College, Dublin |
| Páginas | 53-86 |
53
DOSSIERDOSSIER
e American Convention on Human Rights.
Updated by the Inter-American Court1
Actualizada por la Corte Interamericana2
Á P
Ponticia Universidad Católica de Chile
Summary
is work attempts to provide an instrument allowing non-specialized readers to become
acquainted with the Inter-American Court of Human Rights case law. In order to do so, it in-
serts the Inter-American Court’s case law into the American Convention on Human Rights.
e author makes this insertion using the prescriptive and concise format of international
treaties, so that the result of this work is neither a manual nor a casebook, but a document
that is brief and easy to consult.
Keywords
Inter-American Convention on Human Rights / Inter-American Court of Human Rights /
Evolutive Interpretation.
Resumen
El presente trabajo busca posibilitar que el público no especializado acceda a la jurisprudencia
de la Corte Inter-Americana de Derechos Humanos. Para hacerlo, intercala la jurisprudencia
de la Corte Interamericana en la Convención Americana sobre Derechos Humanos. Esta
incorporación se hace utilizando el formato prescriptivo y conciso que tienen los tratados
internacionales, de modo que el resultado no sea un manual ni un compendio de Derecho,
sino que un documento breve y de fácil consulta.
Palabras clave
Convención Americana sobre Derechos Humanos / Corte Interamericana de Derechos Hu-
manos / Interpretación Evolutiva.
It is desirable that the instruments of the American
corpus juris include unequivocal orders, as clear as
possible, whose interpretation does not require
greater eort by the applicator of the norm,
and even for any common reader.
1 Editor’s note: Due to the particular nature of this article and the advice of the Dossier’s coordinator we have used footnotes
for the citation instead of parenthesis in order to add fluidity for the reading.
2
For this article I am thankful to Jean Menanteau, José Tomás Mery and Pier Pigozzi.
3
Professor at Pontificia Universidad Católica de Chile. Graduate from Universidad de los Andes (Chile), Master in Law
(MJur) from the University of Oxford, and Philosophy Doctor (PhD) from Trinity College, Dublin. The author has been an
intern at the Inter-American Court and Commission, and a study visitor at the European Court of Human Rights. E-mail:
alvaro.paul@uc.cl
Álvaro Paúl (2017). e American Convention on Human Rights. Updated by the Inter-
American Court. Iuris Dictio 20, 53-86.
ISSN 1390-6402 / e-ISSN 2528-7834.
DOI: http://dx.doi.org/10.18272/iu.v20i20. 932
54
ÁLVARO PAÚL
Iuris Dictio 20 (2017), 53-86. ISSN 1390-6402 / e-ISSN 2528-7834. DOI: http://dx.doi.org/10.18272/iu.v20i20. 932
54
Sergio García-Ramírez,
then President of the Inter-American Court
Miguel Castro-Castro Prison v. Perú
1. Preliminary remarks
e Inter-American Court of Human Rights has been adjudicating for nearly forty years. In this
lapse of time it has developed a wide case law that, due to the Court’s system of interpretation,
has somewhat transformed the American Convention on Human Rights (ACHR) to such
an extent, that nowadays it is impossible to grasp its scope without referring to the Court’s
rulings4. Because of this interpretation, non-specialized readers of the ACHR miss much of
the breadth of this treaty. is reality encouraged us to provide an “up to date” version of the
ACHR. As a result, we oer the common reader a treaty-like document, where we include
the Inter-American Court’s case law, so that it is possible to have an instant grasp of what the
Inter-American Court requires of States. We limited our work to the rst three chapters of the
ACHR, because they include what is most relevant to the readers of the ACHR.
Of course, since this work has a simple format, it cannot be assessed as an in-depth
academic paper. e specic strength of this work is not to provide a detailed and comprehensive
analysis of each Article of the ACHR, but to present the Inter-American Court’s case law at a
glance. Hence, there are many nuances that cannot be registered in this work. Furthermore, the
methodology for selecting the cases that are presented as sources would not be suitable for an
in-depth academic Article. In part, this methodological choice arose because of length concerns
that prevented us from including all the relevant judgments that “updated” the ACHR (this is
also the reason why we excluded references to academic papers). As a result of this restriction,
when we were faced with the need to provide sources for each “update” of the ACHR, we
decided to choose a single judgment on the merits or a single advisory opinion. In order to
choose this source, we took into account dierent qualities of the decision, such as its clarity,
its completeness (when establishing requisites), and even if their English translation had an
adequate wording. We also tried to include a signicant number of cases, but we could not
consider them all. e reader should, however, know that this paper is only the rst approach
to having an ACHR “up to date”; particularly, because it is part of a larger project, where it will
be possible to analyze each Article more in depth.
We are aware that, even though the Inter-American Court has the practice of
supporting its decisions by referring to its previous judgments, the principle of stare decisis has
no standing before the Court, as it is often the case with international courts5. Nevertheless,
consistent application of legal instruments allows for legal certainty, so it is a goal that courts
should try to achieve. erefore, case law will always be important, particularly before the
Inter-American Court, since it created the doctrine of conventionality control, which attempts
to require States and its domestic bodies to directly apply the Court’s rulings, even if they were
issued in judgments against third States6.
When “updating” the American Convention, we did not only use the ratio decidendi
of cases, because the Court often quotes its obiter dicta in subsequent cases. Similarly, we did not
4 Due to the nature of this work, we will not address the legal value of the Court’s interpretations. All the translations from
Spanish to English are mine.
5
See, e.g., Statute of the International Court of Justice (1945), Art. 59.
6
This doctrine is, in and of itself, a complex issue that could not be addressed in depth in our paper, even though we included
it in Article 1C. For a good account of this doctrine, see Ariel E. Dulitzky (2015).
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The American Convention on Human Rights…
Iuris Dictio 20 (2017), 53-86. ISSN 1390-6402 / e-ISSN 2528-7834. DOI: http://dx.doi.org/10.18272/iu.v20i20. 932 55
await for a statement to become jurisprudence constant of the Court before including it in this
paper, because there are some issues that are not frequently addressed by the Court, so it would
be dicult to await for subsequent decisions conrming earlier interpretations, as it could
happen with cases concerning slavery. We even included case law that could be considered
contradictory, as it happened with decisions regarding the right to life in Villagrán-Morales and
Artavia-Murillo7, unless the earlier interpretation was denitely abandoned by a subsequent
jurisprudence constant, as it happened with the interpretation of the right to the truth in Bulacio
v. Argentina8.
Before proceeding to the core of this work, we must clarify that this paper does not
attempt to issue value judgments as to the appropriateness of the Court’s interpretations, or
regarding the Court’s power to interpret the ACHR the way it does. We must also explain a
few formal issues. e text in bold shows the original text of the ACHR. e rest of the text
shows the interpretations of the Inter-American Court. We tried to copy the Court’s wording in
quotation marks as much as possible, in order to be faithful to its rulings. When we considered
that the Court created a new right based on an existing one, we added it as close as possible to
the right in which it was based. No text of the ACHR has been omitted. If we considered that
the Court dismissed or disregarded some text of the ACHR, we simply crossed it out. It is also
relevant to note that we did not use gender neutral language, just as a way of maintaining the
style in which the ACHR was drafted.
AMERICAN CONVENTION ON HUMAN RIGHTS
UP TO DATE
Adopted at the Inter-American Specialized Conference on Human Rights,
San José, Costa Rica, 22 November 1969
(as interpreted by the Inter-American Court up to 2016)
PART I - STATE OBLIGATIONS AND RIGHTS PROTECTED
CHAPTER I - GENERAL OBLIGATIONS
Article 1. Obligation to Respect Rights
1. e States Parties to this Convention undertake to respect the rights 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, color, sex9, language, religion or belief10, political or other opinion, na-
tional, ethnic11 or social origin, nationality, age12, economic status, property, civil status13,
7
See below in this article: Art. 4(1).
8 In Bulacio the Inter-American Court broadened its case law on the right to the truth in the narrow sense in order to include
non-gross human rights violations, but this interpretation was soon narrowed down. Bulacio v. Argentina (2003, ¶¶ 113-117).
In relation to the distinction of a right to the truth in the narrow sense or in the broad sense, see Álvaro Paúl (2017).
9
The Court refers to “gender” instead of “sex” in its Advisory Opinion No. 18. However, it seems that the Court just
wanted to use these to concepts as synonyms, which is why “gender” is not added as a separate category. Juridical Condition
and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 (2003, ¶ 101).
10 Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 (2003, ¶ 101).
11
Norín-Catrimán et al. (Leaders, members and activist of the Mapuche Indigenous People) v. Chile (2014a, ¶ 206).
12 Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 (2003, ¶ 101).
13
Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 (2003, ¶ 101).
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