Laurence Burgorgue-Larsen, Amaya Úbeda de Torres
- Civil and political rights — Economic, social, and cultural rights — Rights holders — Gross violations — Actio popularis — International courts and tribunals, jurisdiction
Passion and law1
The book you are about to read is the result of a passionate love affair, two passionate love affairs in fact. The first is with a language and a continent, and although Spanish is not the only idiom to be used on the territories which stretch from Canada in the north to Tierra del Fuego in the south,2 it is certainly the most widely spoken one. Introduced by the Conquistadors, who were as ruthless as other colonizers elsewhere, Spanish forms the linguistic backbone of the continent and is an essential element of its history. As the fight for independence intensified throughout the continent,3 the language became a unifying factor which nourished and fostered the dream of unification so ardently defended by major figures such as Simón Bolivar and José Marti. Alongside our love of Spanish, the language in which Cervantes wrote his masterpiece, Don Quichotte, a world classic, is our love for the continent which embodies it, the Americas. This continent is a perpetual source of fascination, a place of paradox and contrast, where geographical, political, cultural, and social extremes are brought together.
North America is poles apart from the countries of Central and South America and is itself made up of three totally different countries: Canada, the United States, and Mexico. What unites them is geography, what separates them is the contrast between two old democracies, both of which have a highly developed economy and one of which is the military superpower of the 21st century, and a country with countless economic and social problems but which was the first one in the 20th century to introduce a Constitution, (p. xxx) drafted and signed in Querétaro, which promoted ‘social constitutionalism’ to the rank of noble respectability.4
Moving south to the other two ‘sub-regions’ we find countries which are advancing along the often rocky road to economic development and to the introduction or consolidation of democracy. Here, too, there are huge dissimilarities, for instance geographical, where the English-speaking island micro-States seem small indeed when compared to the rising economic and political might of a country like Brazil. And if we focus just on the countries of Latin America that are the furthest apart, other questions appear. What links Mexico and Argentina? The Mexican countryside abounds in ‘stone and gold’,5 therich vestiges of the pre-Columbian era of the Aztec and Maya civilizations on which the relics of Spanish Christians have become superimposed. Argentina’s endless contrasting vistas, which intoxicate and enchant the observer, were populated by successive waves of European immigrants in search of happiness; one almost forgets the Indian communities who live in the remote northern province of Jujuy, in dizzyingly beautiful mountainous regions such as Cerro de las siete colores. Similarly, what links Mexico City and Buenos Aires? The first is a gigantic sprawling conurbation, founded in 1325 on Lake Texcoco by the Aztecs who proudly named it Tenochtitlán. The second is a capital city whose architecture is reminiscent of the Haussmann style, where traces of European culture that some people miss, that others dream of, and yet others celebrate in song are to be found at every street corner, in every square—from the Plaza San Martín to the Avenida Libertador—setoffby the flaming colours of the Jacaranda trees in full bloom.6 We could go on and on, listing the dissimilarities, variations, and diversity of the region, and what could be more normal? After all, don’t we speak of the Americas? The plural is deliberate, a reminder of the many differences between these countries, which have suffered the torments of ideologies of all sorts, of unfinished revolutions, of disenchantment, of periods of economic crisis and prosperity. But despite these apparently unbridgeable differences, there is something which brings these States and multifarious cultures together: membership of the Organization of American States and, in particular, the Inter-American System of Human Rights Protection.
Here we have our second love affair, the source of the passion which drives us and which incited us to write this book: Inter-American human rights law. The aim of this short introduction is not to present the subject, since Sergio García Ramírez, President of the Inter-American Court, has kindly and generously done us the immense honour of writing a brilliant presentation of the system. In his clear and precise overview, with its many references, he recounts the major historical landmarks, describes the essential features of the system, and lists the major challenges for the future. The point we wish to make here, without being unduly influenced or blinded by our passion for law in general and Inter-American law in particular, is the importance of the contribution of America, especially Latin America, to international law, especially international human rights law. Today, Europe shows a marked tendency for forgetting or ignoring this fact, (p. xxxi) at least in French-speaking academic circles.7 But this was not always the case and in 1956 the illustrious humanist jurist8 René-Jean Dupuy wrote his important work Le nouveau panaméricanisme.9 Thus, in the middle of the 20th century, this intellectual leader whose ideas were of such influence at the universities of Algiers, Aix-en-Provence and Nice produced an elegantly written book describing the various stages of the Inter-American unification process, with its hopes and disappointments. The many and varied contributions of what he called the ‘New World’ to international law were also mentioned.10
Whereas a number of well-known figures from the Americas have written extensively about international law (including Alejandro Álvarez, Julio Barberis, Thomas Buergenthal, Antonio Gómez Robledo, Hector Gros Espiell, Edouardo Jiménez de Aréchaga, Gonzalo Parra-Aranguren and, more recently, Antonio Cançado Trindade and Mónica Pinto),11 (p. xxxii) criminal law (for example, Sergio García Ramírez and Alejandro Aponte Cardona),12 and constitutional law (for example, Héctor Fix-Zamudio, Allan R. Brewer Carias, and Diego Valadés),13 European scholars, at least on the continent, have shown little interest in either the Inter-American system or its most illustrious representatives.14 Likewise, although the Latin-American approach to international law has given rise to the creation of what are now considered to be classical mechanisms of international law, they have been ‘internationalized’ to such a degree that their origin has been forgotten.15
Yet America can offer us its experience, its more or less successful attempts to create different unified or integrated communities; they deserve our attention, and include the Andean Community of Nations, the Central American Integration System and the Caribbean Community, and the Southern Cone Market (Mercosur). But what particularly interests us here is the fact that America has risen to the challenge of introducing a functioning regional system of human rights protection, even though we know perfectly well that it is beset with problems. What is important is that, once again, the ‘New World’ is contributing to international law, the different systems of American community (p. xxxiii) law are contributing to European Union law, and Inter-American human rights law is contributing to international human rights law. And this is why the two of us, as women from Europe who are curious and eager to make new discoveries, have chosen to look beyond the ‘old continent’ and to examine and analyse the judgments of the Inter-American Court in San José. More than forty years have elapsed since the Pact of San José was signed, and more than thirty since it entered into force, and we felt that the time was ripe to undertake a major study of the abundant case law of the Inter-American Court. Initially, this work fell within a French public law tradition of scholarly writings, beginning with the Grands arrêts de la jurisprudence administrative16 andcontinuingwiththe Grands arrêts de la Cour européenne des droits de l’homme.17 These two works have served as an example and a stimulus and have encouraged us in the task of revealing the wealth of a body of case law which, although firmly rooted in the universalism of human rights, reflects an extremely bold and original approach.
As we started out on this task we had set ourselves, a number of methodological problems arose. We had to decide which cases we would consider as major ones, and then analyse them in the light of the impressive body of case law produced by the Court. This meant reading and deciphering it all so as to be able to give a critical interpretation of the decisions, where appropriate, and highlight both the strong points and also the weaknesses.
The initial choice of major decisions was made in collaboration with the Secretariat of the Inter-American Court, in particular Pablo Saavedra, to whom we wish to express our gratitude here. We provided him with a tentative list of cases, which he suggested revising. The final list was our decision alone, and for that we take full responsibility. The particularity of the Inter-American system, where an important place is given to the advisory function of the Court and its power to order provisional measures, explains why we have not only included a number of judgments but also several advisory opinions and an order of the President of the Court. Nevertheless, it is the entire body of case law which has served as a basis for our analysis, from the first advisory opinion of September 24, 1982 to the very latest judgments handed down during the LXXXVII session of the Court, sitting in San José from May 17 to 28, 2010.18 As for the analysis itself, it has been structured around specific themes, one per chapter, rather than around the rights as listed in the American Convention, as this approach corresponds better to that of the Court.19 As far as possible, we have tried to give a large place to general international law and to comparative human rights law and have always sought to relate the decisions of the Inter-American Court to international and European human rights instruments and decisions. Consequently, our aim has never been to (p. xxxiv) summarize the issues but, on the contrary, to provide a critical analysis and to put them in a broader perspective.
We sincerely hope that the reader will derive as much pleasure when discovering the Inter-American system of human rights protection, with its high points and its low points, its classicism, and its originality, as we had when planning and writing this book.
Laurence Burgorgue-Larsen and Amaya Úbeda de Torres
1 This expression is well known to the French reader, who will recognize the famous phrase from the title of Professor Jean Carbonnier’s essay ‘Droit et passion du droit sous la V° République’, Paris, Flammarion, 1996. However, for this eminent civil law specialist, the word ‘passion’ was anything but positive and he denounced the excesses of regulation, the increase in the number of all kinds of rules and principles, including both those ‘that came from elsewhere’ and also ‘subjective rights’. He had a sharp tongue and a lively style, and certain statements he made could be criticized. His diatribe against the ‘way law is made’ (an attack against European law and against the law contained in conventions) and his criticism of ‘the way law is being smashed to smithereens by subjective rights’ (esp. pp. 44 and 121) are positions that we obviously do not share. Nevertheless, the essay is quite remarkable, both through the wealth of ideas it contains and the quality of the writing.
2 Of course, one must not forget Portuguese, which is spoken in the vast territory of Brazil, and English, spoken in the English-speaking island-States of the Caribbean and also in most of North America (United States and Canada).
3 For us, the quarrel between the ‘defenders of Spanish’, for whom the ‘true history of Latin America started with the arrival of the Spanish’, and the ‘defenders of the indigenous populations’, for whom ‘the authentic and deeply rooted reality of America comes from the pre-Columbian civilizations and their descendants, the indigenous peoples, and not from the contemporary heirs of the Conquistadors’, is a meaningless debate. Pitting one against the other means denying the existence of the Other. We are in complete agreement with Mario Vargas Llosa when he wrote in his Dictionnaire amoureux de l’Amérique latine that ‘the drawback of trying to determine a single and unique Latin-American identity is that it results in the discriminatory surgical removal of millions of Latin-Americans and many forms or manifestations of their lush cultural diversity’, Paris, Plon, 2005, p. 12 (our translation). This book was published in Spanish the following year, Diccionario del amante de Amércia Latina, Barcelona, Paidós Ibérica, 2006.
4 Constitution of January 31, 1917 drafted in Querétaro, Mexico; see J. Sayeg Helú, La Revolución mexicana a través de sus documentos, Mexico, UNAM, 1996.
7 This book was first published in French for a French-speaking readership which, for a long time, knew nothing about the Inter-American system of human rights protection. On the contrary, English-speaking scholars have written quite extensively on the subject; see infra, note 14.
8 This epithet is a direct reference to the homage paid to René-Jean Dupuy on his retirement by the Société française de droit international in a short work entitled Ouvertures en droit international. Professor Vedel wrote as follows of the man who had ended his career as professor at the Collège de France: ‘I was always dazzled by his mastery of law—and not just international law—and also by what inspired and drove him, an extremely human inspiration similar to that to which the law should respond, in other words the need for justice and, above all, a belief in justice’, Hommage à René-Jean Dupuy. Ouvertures en droit international, Paris, Pedone, 1998, p. 7.
9 R-J. Dupuy, Le Nouveau panaméricanisme, L’évolution du système interaméricain vers le fédéralisme, Paris, Pedone, 1956, 256p. Professor Dupuy followed this with another ‘Latin-American’ book on the ideas of the Chilean legal scholar Alejandro Álvarez (Los principios fundamentales del derecho internacional en la doctrina de Alejandro Álvarez, Santiago, 1972).
10 A perfect example is the following passage: ‘The principle according to which all conflicts between States should be resolved by peaceful means goes back to the first pan-American conference in 1889. In that respect, America was at the forefront of the progressive development of international law.’ (R-J. Dupuy, Le nouveau panaméricanisme…, op.cit., p. 155.)
11 One indication of the dissemination of the ideas of Latin-American authors in the field of international law is their participation in the work of the Hague Academy of International Law, including, among others: J. Barberis, ‘Les nouvelles questions concernant la personnalité juridique internationale’, Collected Courses of the Hague Academy of International Law, 1983-I, pp. 145–304; by the same author, ‘Les règles spécifiques du droit international en Amérique latine’, Collected Courses of the Hague Academy of International Law, 1992-IV, pp. 81–230; T. Buergenthal, ‘Self-executing and non self-executing treaties in national and international law’, Collected Courses of the Hague Academy of International Law, 1992-IV, pp. 303-400; A.A. Cançado Trindade, ‘International Law for Humankind: towards a new jus gentium (I) and (II)’, Collected Courses of the Hague Academy of International Law, 2005, pp. 9–439 (vol. 316) and pp. 9–312 (vol. 317); A. Gómez Robledo, ‘Le ius cogens international: sa genèse, sa nature, ses fonctions’, Collected Courses of the Hague Academy of International Law, 1981-III, pp. 9–218; H. Gros Espiell, ‘Le système interaméricain comme régime régional de protection internationale des droits de l’homme’, Collected Courses of the Hague Academy of International Law, 1975-II, pp. 1–55; by the same author, ‘La Convention américaine et la Convention européenne des droits de l’homme: analyse comparative’, Collected Courses of the Hague Academy of International Law, 1989-VI, pp. 167–412; E. Jimenéz de Aréchaga, ‘Le traitement des différends internationaux par le Conseil de Sécurité’, Collected Courses of the Hague Academy of International Law, 1954-I, pp. 1–105; by the same author, ‘La coordination des systèmes de l’ONU et de l’Organisation des Etats Américains pour le règlement pacifique des différends et la sécurité collective’, Collected Courses of the Hague Academy of International Law, 1964-I, pp. 419–526; ‘International law in the past century’, Collected Courses of the Hague Academy of International Law, 1964–I, pp. 1–344; G. Parra-Aranguren, ‘Recent developments of conflict of laws conventions in Latin America’, Collected Courses of the Hague Academy of International Law, 1979-III, pp. 55–170; by the same author, ‘General course of private international law: selected problems’, Collected Courses of the Hague Academy of International Law, 1988-III, pp. 13–223; M. Pinto, ‘L’emploi de la force dans la jurisprudence des tribunaux internationaux’, Collected Courses of the Hague Academy of International Law, vol. 331, 2007, pp. 9–471.
12 As would be expected of a President of the Inter-American Court, S. García Ramírez has written extensively on human rights protection, but he is also one of the greatest Mexican specialists of his generation in criminal law and a prolific writer. Here is just a sample of his work: Temas y problemas de justicia penal, México, Seminario de Cultura Mexicana, 1996; La jurisdicción internacional. Derechos humanos y derecho penal, Mexico, Porrúa, 2003; La Corte Penal Internacional, México, Instituto Nacional de Ciencias Penales, 2004 (2nd edn.); Panorama del proceso penal, México, Ed. Porrúa, 2004; Delincuencia organizada. Antecedentes y regulación penal en México, Prologue Olga Islas de González Mariscal, Mexico, Ed. Porrúa-Instituto de Investigaciones Jurídicas, UNAM, 2005 (4th edn.). Of the young generation of criminal law specialists, who have been much influenced by the work of German academic writers, mention should be made of the Colombian Alejandro Aponte Cardona, Guerra y derecho penal del enemigo: reflexión sobre el eficientismo penal de Enemigo, Bogota, Editorial Ibañez, 2006. This book has also been published in German, Krieg und Feindstrafrecht. Uberlegungen zum ‘effizienten’ Feindstrafrecht anhan der Situation in Kolumbien, Nomos Publishers, 2004.
13 The Mexican legal scholars Héctor Fix-Zamudio and Diego Valadés are among the best specialists of constitutional law in Latin America. The first, who was twice President of the Inter-American Court (1990–1993 and 1995–1997) is well known for his work on constitutional legal proceedings: El juicio de amparo, 1964; Veinticinco años de evolución de la justicia constitucional—1940–1965, 1968; El derecho de amparo en el mundo (with Eduardo Ferrer Mac-Gregor), 2006. He has also written on human rights: Constitución, proceso y derechos humanos, 1988; Ombudsman y derechos humanos, 1993. Diego Valadés is well known for his publications on comparative constitutional law, which include La parlamentarización de los sistemas presidenciales, Mexico, UNAM-Instituto de Investigación Jurídica, 2006 and, more recently, the book he wrote with J. Carpizo in which they analyzed the issues of abortion and euthanasia from a comparative constitutional point of view (Derechos humanos, aborto y eutanasia, Mexico, UNAM, Instituto de Investigación jurídica, 2008). The Venezuelan Allan R. Brewer Carias, former Vice-President of the International Academy of Comparative Law, has published extensively on comparative administrative law and comparative constitutional law, including Etudes de droit public comparé, Brussels, Bruylant, 2001; La justicia constitucional (procesos y procedimientos constitucionales, Mexico, Porrúa/Instituto Mexicano de Derecho procesal Constitucional, 2007.
14 The general bibliography at the end of the book shows that there is no shortage of publications in English on the Inter-American system of human rights protection, by academics from both North American and British universities. Surprisingly, given the historical ties and the shared language which forms a natural link between the universities of Spain and Latin America, Spanish legal scholars have shown no interest in the Inter-American Court and its case law and no major work by Spanish international law specialists has been published. As for work in French, there have been some promising signs of interest on the part of academics in the past few years.
15 For publications on the contribution of Latin America to international law, see the classic works of A. Álvarez, ‘Latin America and International law’, American Journal of International Law, 1909, pp. 269ff.; Le droit international américain: son fondement, sa nature d’après l’histoire diplomatique des Etats du Nouveau Monde et leur vie politique et économique, Paris, Pedone, 1910.
19 Our approach covers major themes such as the rights of the child, women’s rights, workers’ rights, the rights of indigenous peoples, and the rights of detainees, none of which can be analysed with respect to a single provision of the American Convention on Human Rights. It is for this reason that we chose not to analyse the case law on an ‘article-by-article’ basis, all the more so that not all the provisions of the Convention have been considered by the Court.