...continued

100.   In this respect, the State has provided a number of explanations or justifications for the Petitioners’ treatment which, in its view, should preclude the Commission from finding any violations of Articles II and XX of the American Declaration. In particular, as noted above, the State argues that the issue raised by the Petitioners relates at base to the federal structure of the United States and the decision by its founders to constitute a union of relatively autonomous states.  According to the State, it is the absence of the District’s status as a state, and not any conscious decision by the U.S. government, discriminatory or otherwise, to disenfranchise the Petitioners or other residents of the District of Columbia, that has resulted in their status vis a vis the U.S. Congress.  The decision of the framers of the U.S. Constitution in turn was, according to the State and the Petitioners alike, based upon the desire to protect the center of federal authority from undue influence of the various States, and at the same time avoid the possibility that the residents of the District might enjoy a disproportionate influence on governmental affairs by virtue of their “contiguity to, and residence among, members of the General government.” [100] As such, the State suggests that these decisions not only justify the limitation on the Petitioners’ right to elect members of Congress, but concern the very organization of the United States and therefore should be left to the realm of political debate and decision-making.

101.   In entering into this stage of its analysis, the Commission acknowledges the degree of deference that must properly be afforded to states in organizing their political institutions so as to give effect to the right to vote and to participate in government.  The Commission should only interfere in cases where the State has curtailed the very essence and effectiveness of an individual’s right to participate in his or her government.  After considering the information on the record, however, the Commission finds that the restrictions on the Petitioners’ rights under Article XX to participate in their national legislature have been curtailed in such a manner as to deprive the Petitioners of the very essence and effectiveness of that right, without adequate justification being shown by the State for this curtailment.

102.   The Commission notes in this regard that the political structure of the United States has been developed so as to provide for both state and federal levels of government, each with exclusive areas of jurisdiction under the Constitution.  Consistent with this, the U.S. Congress, as the legislative branch of the federal government, has been afforded extensive powers to consider and enact legislation in areas such as taxation, national defense, foreign affairs, immigration and criminal law.  It is also clear that these powers and legislative measures are binding upon or otherwise affect residents of the District of Columbia as they do other citizens of the United States.  Indeed, as a consequence of Article I, section 8 of the U.S. Constitution and the Organic Act of 1801, Congress has the exceptional authority to exercise all aspects of legislative control over the District, subject to what aspects of that authority Congress may delegate to District authorities through appropriate federal legislation.

103.   Despite the existence of this significant and direct legislative authority that Congress exercises over the Petitioners and other residents of the District of Columbia, however, the Petitioners have no effective right to vote upon those legislative measures, directly or through freely chosen representatives, and it is not apparent from the record that Congress is responsible to the Petitioners for those measures by some other means.  In this manner, Congress exercises expansive authority over the Petitioners, and yet it is in no way effectively accountable to the Petitioners or other citizens residing in the District of Columbia.  This, in the Commission’s view, has deprived the Petitioners of the very essence of representative government, namely that title to government rests with the people governed.

104.   Both the Petitioners and the State have suggested that the foundation of the denial to the Petitioners of the right to vote for and elect members of Congress lay upon concerns existing at the time the U.S. Constitution was negotiated over 200 years ago that the seat of the federal government may be disproportionately threatened, or the position of a state correspondingly enriched, by placing Congress within a State.

105.   The Commission has recognized and given due consideration to the fact that these concerns may have justified depriving residents of the District of elected representation in Congress at the time that the U.S. Constitution was enacted and indeed may have been indispensable to the Constitution’s negotiation.  However, as with all protections under the American Declaration, the Commission must interpret and apply Articles II and XX in the context of current circumstances and standards. [101] Not only has the State failed to offer any present-day justification for the Petitioners’ denial of effective representation in Congress, but modern developments within the United States and the Western Hemisphere more broadly indicate that the restrictions imposed by the State on the Petitioners’ right to participate in government are no longer reasonably justified.

106.   Significantly, the State’s judicial branch has specifically concluded that the historical rationale for the District Clause in the U.S. Constitution would not today require the exclusion of District residents from the Congressional franchise and has accepted that denial of the franchise is not necessary for the effective functioning of the seat of government. [102]   It is also notable in this regard that domestic courts in the United States have found that the exclusion of District residents from the Congressional franchise does not violate the right to equal protection under the U.S. Constitution, not because the restriction on their right to elect Congressional representatives have been found to be justified, but because the limitation is one drawn by the Constitution itself and accordingly cannot be overcome by the one person, one vote principle. [103]   The American Declaration prescribes no similar limits or qualifications upon the guarantee of the rights under Articles II and XX and, as indicated above, establishes standards that apply to all legislative or other enactment by a state, including its constitutional provisions.

107.   Numerous political initiatives have been undertaken in the United States in recent years to extend some measure of national representation for D.C. residents, which similarly recognize the present-day inadequacy of the Petitioners’ status in the federal system of government.  These have included, for example, granting District residents in 1960 the right to vote in Presidential elections through the 23^rd amendment to the U.S. Constitution, the passage of the District of Columbia Delegate Act in 1970 which provided the District of Columbia with a non-voting delegate in the House of Representatives, and the extension to the D.C. delegate in 1993 of a limited right to vote in Congress’ Committee of the Whole.

108.   The Commission also considers it significant that according to the information available, no other federal state in the Western Hemisphere denies the residents of its federal capital the right to vote for representatives in their national legislature.  In Canada, for example, the City of Ottawa constitutes a part of the Province of Ontario and accordingly its residents are entitled to elect Members of Parliament in the federal House of Commons on the same basis as residents in other provincial electoral divisions. [104]   The City of Buenos Aires, while constituting a separate enclave similar to the District of Columbia, is entitled to elect deputies and senators to Argentina’s national legislature. [105] Similarly, the residents of Brasilia, Brazil, [106] Caracas, Venezuela [107] and Mexico City, Mexico, [108] all of which constitute federal enclaves or districts, have voting representation in their national legislatures.

109.   Based upon the foregoing analysis, the Commission concludes that the State has failed to justify the denial to the Petitioners of effective representation in their federal government, and consequently that the Petitioners have been denied an effective right to participate in their government, directly or through freely chosen representatives and in general conditions of equality, contrary to Articles XX and II of the American Declaration.

110.   It also follows from the Commission’s analysis that securing the Petitioners’ rights under Articles II and XX of the Declaration does not necessarily require that they be afforded the same means or degree of participation as residents of states in the United States.  What the Declaration and its underlying principles mandate is that the State extend to the Petitioners the opportunity to exercise a meaningful influence on those matters considered by their governing legislature, and that any limitations and restrictions on those rights are justified by the State as reasonable, objective and proportionate, taking due account of the context of its political system.  As Article XX of the Declaration suggests, this is generally achieved through the election of representatives to the legislature who may cast a vote on matters before the legislature that has a meaningful possibility of affecting the outcome of those deliberations.  Nevertheless, the mechanisms through which the State may afford these opportunities are clearly a matter for the discretion of the State concerned.

V.      PROCEEDINGS SUBSEQUENT TO REPORT 115/01

111.   On October 15, 2001, the Commission adopted Report 115/01 pursuant to Article 43 of its Rules of Procedure, setting forth its analysis of the record, findings and recommendations in this matter.

112.   Report 115/01 was transmitted to the State by note dated October 19, 2001, with a request that the State provide information as to the measures it had taken to comply with the recommendations set forth in the report within a period of two months, in accordance with Article 43(2) of the Commission’s Rules.

113.   By communication dated December 18, 2001 and received by the Commission on December 19, 2001, the State delivered a response to the Commission’s request for information, in which it indicated as follows:

As the United States has previously indicated, the petition submitted in Case No. 11.204 is inadmissible for the reasons detailed in the numerous submissions to the Commission. The petition in this matter fails to state a claim under the American Declaration on the Rights and Duties of Man (“Declaration”), and on this basis, the United States respectfully requests that the Commission withdraw Report No. 115/01 and order the petition dismissed.

First, petitioners have failed to allege facts that establish a violation of the right to vote as set forth in Article I of the Declaration. The decision to establish the District of Columbia as a federal enclave in which the residents have voting rights that differ from residents of other areas of the United States was not based on any improper grounds as set forth in Article II. Instead, the decision was based on matters of federalism, unrelated to “race, sex, language, creed or any other factor.”

Likewise, the petition fails to establish a violation of Article XX of the Declaration. Neither the petition, nor the Commission’s Report identifies any standard – either in the Declaration or in international law – that would require participation in government in any particular manner. The framers of the U.S. Constitution, as well as its past and present citizenry, have devised a system of government that affords citizens of the District of Columbia certain rights with regard to participation in governance, both at the district and federal level. This is a matter properly within the discretion of the people of the United States.

Finally, the political system challenged by the petition is simply not appropriate for review, and even less for rejection, by the Commission. These are sensitive issues better left to domestic political processes. There is simply no basis for the Commission to substitute its judgment for the political debate and decision-making of the federal branches of the government of the United States.

114.   With respect to the first two observations raised by the State, the Commission considers that these arguments have already been raised before and examined by the Commission during the admissibility and merits phases of the process and the Commission sees no reason to alter its findings in this connection. With respect to the State’s third observation, although the Commission agrees that the issues raised by the Petitioners may constitute sensitive matters ordinarily addressed by domestic processes, it is in large part because the domestic political and legal procedures have failed to resolve the complaints raised by the Petitioners that the Commission has exercised its reinforcing and complementary jurisdiction to evaluate their complaints in light of the United States’ international human rights obligations.

115.   Based upon the response of the United States, the Commission finds that the State has failed to take measures to comply fully with the Commission’s recommendations. On this basis, and having considered the State's observations, the Commission has decided to ratify its conclusions and reiterate its recommendations, as set forth below.

VI.      CONCLUSIONS

116.   The Commission, based upon the foregoing considerations of fact and law, and in light of the response of the State to Report 115/01, hereby ratifies the following conclusions.

117.   The Commission hereby concludes that the State is responsible for violations of the Petitioners’ rights under Articles II and XX of the American Declaration by denying them an effective opportunity to participate in their federal legislature.

VII.     RECOMMENDATIONS

118.   In accordance with the analysis and conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE UNITED STATES: 

119.   Provide the Petitioners with an effective remedy, which includes adopting the legislative or other measures necessary to guarantee to the Petitioners the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their national legislature.

VIII.    PUBLICATION

120.   By communication dated October 29, 2003, the Commission transmitted this report, adopted as Report Nº 54/02 pursuant to Article 45(1) of the Commission’s Rules of Procedure, to the State and to the Petitioners in accordance with Rule 45(2) of the Commission’s Rules and requested information within 30 days as to measures adopted by the State to implement the Commission’s recommendations.

121.   By communication dated November 29, 2003 and received by the Commission on December 1, 2003, the Petitioners provided a response to the Commission’s October 29, 2003 request for information, in which they indicated that the Government of the United States had failed to comply with the Commission’s recommendations.

122.   The Commission did not receive a response from the State to its request for information within the time period specified in the Commission’s October 29, 2003 note.

123.   In light of the information received from the Petitioners, the Commission in conformity with Article 45(3) of its Rules of Procedure decides to ratify the conclusions and reiterate the recommendations in this Report, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the United States with respect to the above recommendations until they have been complied with by the United States.

Approved on the 29^th day of the month of December, 2003.  Clare K. Roberts, First Vice-President; Susan Villarán, Second Vice-President; and Julio Prado Vallejo, Commissioner.  President José Zalaquett adopted a dissenting opinion, which was presented on October 24, 2003 and is included immediately after this report.

DISSENTING OPINION OF COMMISSIONER JOSE ZALAQUETT

          1.       My dissent is based on differences with the explicit position of the majority –or with the conclusions that derive logically from that position – in respect of three types of issues: (i) the assessment of the relevant and substantial facts pertaining to this case, as well as other background materials, of public or general knowledge, which are important to take into account when reasoning by comparison or analogy; (ii) applicable law, in particular Articles II and XX of the American Declaration of the Rights and Duties of Man; (iii) what is this Commission’s role in protecting and promoting human rights in the Hemisphere, and in particular the relationship of its role in the examination of communications or complaints that it receives versus its role in promoting human rights; and how it should apply the principle of progressivity in the protection and promotion of human rights.

2.                 Before expressing my opinion on these three types of issues, I should begin by stating that I fully share the opinion of the majority in this case, as well as that expressed by the Commission in its report on the Aylwin Azócar  et al. case, [109] both by the majority and by Commissioner Robert Goldman, who wrote a dissenting opinion, in that representative democracy is the essential framework for the protection and promotion of human rights in the inter-American system.

3.                 It also seems appropriate for me to make clear from the outset that, although I shall cite the dissenting opinion of Commissioner Goldman in Andrés Aylwin Azócar  et al., my comments should not be construed as a commentary, either positive or negative, on the decision in that case, which involved a petition against my country of nationality, the Republic of Chile.  To be sure, I have well-formed opinions on substantial questions relating to the structure of my country’s political system — questions like those that were at issue in the Andrés Aylwin Azócar  et al. case.  However, I believe that my views in this regard are better expressed in other venues and forums, as I have done on a number of occasions in the past.  By stating this, I do not mean to suggest that the rules prohibiting commissioners from taking part in discussions, deliberations, or decisions regarding matters submitted to the Commission in relation to the State of which they are nationals [110] should be interpreted so broadly as to prohibit a commissioner from commenting on decisions involving his country that appear in past Commission reports (decisions in which he has not participated) when ruling on communications or petitions relating to other States.  Rather, I think, on the one hand, that the facts in the Andrés Aylwin Azócar  et al. case are very different from the facts in the present case, and, on the other, that it is important to prevent, insofar as possible, speculative interpretations, in one direction or another, of the present dissenting opinion, whether such speculation is based on the above-mentioned case, on my status as a Chilean, or on the activities that I have carried out in my country in the field of human rights.  I cannot, however, fail to make reference to generally applicable principles and standards mentioned by Commissioner Goldman in his dissenting opinion in Andrés Aylwin Azócar et al., since I consider them pertinent in establishing the basis for my position in the present case.

          4.       Turning to the facts established in the record of the present case, it seems to be generally accepted that the status of the District of Columbia as the seat of government under the jurisdiction of Congress, without being a state of the Union, was originally a product of reasonable–and, in any case, sovereign–political accords, as well as of motivations and considerations based on historical circumstances going back to the founding of the United States of America.  It is also clear that, since the establishment of the District of Columbia, constitutional amendments and legislation have allowed its residents to participate in presidential and local elections, as well as to elect two senators and a representative, who are not, however, allowed to vote in committee or in plenary if their vote might be decisive.

          5.       Despite the changes introduced in the legal status of the District and the political rights of its residents over time, it may be said that in light of the evolution undergone by the United States and its federal government in the course of the country’s history, as well as in light of the connotations which at present are attached to the concept of democratic representation, the reasons that, at the time, could have explained the constraints placed on the District of Columbia within the constitutional and legal structure of the United States have now lost validity.  Hence, it may be affirmed from the point of view of political theory or political ethics that the corrective measures that have been introduced, gradually and very slowly, remain insufficient in that the residents of the District continue to be deprived of the right to vote for members of Congress who are members of that body in the full sense.  This inequity has been recognized by the Federal Court of the District of Columbia, although it concluded that it lacked the authority to provide a legal remedy. [111]

          6.       In other words, if the District of Columbia were founded today, it would not appear reasonable or equitable for the rights of its residents to be subject to the political restrictions that currently affect them.  Since the District, as is well known, has a history going back more than 200 years, the reproach that could be addressed to the United States from the point of view of democratic theory or ethics would be that it has not adapted its political system to present-day exigencies as regards the rights of the District’s residents. What this Commission must decide is whether, in this case, that theoretical or moral reproach can also be formulated as a legal reproach, based on the rules of international law invoked by the petitioner, i.e., Articles II and XX of the American Declaration of the Rights and Duties of Man.

          7.       Before analyzing the point just mentioned in the preceding paragraph, an examination of further matters of fact is in order.  As established in this report, [112] a proposed 1978 amendment to the Constitution of the United States, seeking to broaden the political rights of the residents of the District in the direction called for by the petitioners in this case, failed to obtain the required ratification of three quarters of the state legislatures.  The petitioners cite statistics indicating that the population of the District of Columbia has changed over time, coming to comprise a majority of African-Americans.  They suggest that the lack of change in the District’s status could be motivated by racial prejudice. The majority vote, although it expresses concern about the possibility that the District’s situation may have had a harmful impact that affected the resident African-American community disproportionately, judged that the record did not contain sufficient evidence to justify a finding on the question of racial prejudice. [113]   Indeed – one may add - the lack of sufficient ratifications by state legislatures could be attributed to other factors in addition to, or in place of, that mentioned by the petitioners, although that too would entail speculating on the motivations of the voters who rejected the constitutional amendment.  One possible motivation could be reluctance to grant the right to elect senators and representatives to a community of residents, the majority of which is known or assumed to favor a particular political party.  Another is the reluctance of many voters to grant greater political rights to the residents of the territory that is the seat of the branches of the federal government, or to change the foundations of a federal structure that dates back to the nation’s origins.

          8.       These considerations, though speculative, are reminders of the well-known fact that the majority, if not all, democratic political systems, reveal asymmetries as a result of complex historical developments in which a range of factors play a role.  Added to this is the inclination of the majority of citizens in many countries to preserve their basic institutions, especially longstanding ones, frequently out of fear that some changes, though desirable, may alter certain balances and provoke other, less desirable, changes.  We may consider these facts good or bad, but in my judgment they constitute one of the ultimate reasons why States, when assuming international obligations, take care to reserve, for their own sovereign decision-making, fundamental aspects of their internal political structure, notwithstanding the political rights they establish or the obligations they undertake.

          9.       The majority opinion has cited the example of other federal States in the Americas, in all of which the residents of federal districts or enclaves have the right to vote for representatives in the national legislature. [114]   I consider that this reference, which appears to advance these States as models in contrast to the situation in the United States, is unfortunate, since it singles out an isolated element of such States’ political systems without considering their political structure as a whole or the manner in which they have guaranteed or guarantee the political rights of their citizens.  In analyzing this case, it seems to me that it is more relevant to note the variety and complexity of the asymmetries and peculiarities revealed by an examination of the most diverse democratic regimes of our region and other parts of the globe.  These asymmetries and peculiarities include forms of association among States that contain special agreements on the political rights of their respective residents; special status applying to certain provinces, regions, or territories within a State, including particulars on the political or other rights of the residents, nationals, or members of one or another geographical area or community; recognition, within a State, of particular peoples or groups, who are subject to a specific status,  legislation or jurisdictions or enjoy specific rights; organs of the State that carry out legislative or quasi-legislative functions although they are not elected by the people, or although some of their members are not; vast differences in the representation of states in the federal legislature, given their respective populations (for example, the state of California, the most populous in the United States, has approximately 65 times the population of Wyoming, the least populous state, but both, like the rest of the states, elect two senators each); requirements of political party affiliation as a condition for a given type of participation in elections, or requirements for a minimum percentage of votes for a political party to exist as such or to have parliamentary or municipal representation; a variety of electoral systems and diverse configurations of electoral districts or constituencies that, objectively, can favor certain candidates, movements or parties very significantly.

          10.     Though it seems just and equitable, at least theoretically or morally, for the residents of the District of Columbia to have the right to elect full representatives to the federal legislature, the above factors indicate that any institutional or legal modality that may be used to achieve this objective, insofar as it would involve reform to a particular aspect of a complex institutional arrangement, may entail many other repercussions within the political system of the United States.  This supports the conviction (the legal foundation of which is set forth below as a part of this dissent) that the matter before us should remain subject to the internal political process of the United States.  This does not mean that there are no questions of political rights that may be the subject of scrutiny by international human rights bodies, but, as I shall argue in the paragraphs below, the issue at stake in this case is not one of them.

          11.     The standards of international law that, in principle, are applicable to this case are Articles II and XX of the Inter-American Declaration of the Rights and Duties of Man.  The majority of the Commission has ruled that the rights of the petitioners established in these articles have been violated by the United States, which has denied them an effective opportunity to play a role in its federal legislature. Other relevant norms of international law that may throw light on the interpretation of the above-mentioned precepts are those embodied in Articles 23 and 24 of the American Convention on Human Rights, those in Articles 2.1 and 25 of the International Covenant on Civil and Political Rights, and those in Article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Also of interest is the jurisprudence of the European Court of Human Rights [115] and the decisions and general observations of the Human Rights Committee established by the International Covenant on Civil and Political Rights . [116]

          12.     In his dissenting opinion in Andrés Aylwin Azócar  et al., Commissioner Goldman has examined a number of the standards and decisions mentioned in the paragraph above, in connection with his analysis of Article 23 of the American Convention on Human Rights, which is applicable to that case because Chile, unlike the United States, has ratified the Convention.  His analysis, which I fundamentally agree with, is similarly applicable to Article XX of the American Declaration of the Rights and Duties of Man, which is binding on the United States. A number of ideas from Commissioner Goldman’s dissenting opinion are especially relevant here: (i) that the protection of the inter-American system has been conceived as a subsidiary mechanism, while primary responsibility for protecting human rights falls on the States (paragraph 2); (ii) that Article 23 of the American Convention (additional comment: this is also applicable to Article XX of the American Declaration) does not establish a model or specific modality for electing the members of the legislature (paragraph 3); (iii) nor does it define a definite model according to which each State should be organized in order to institutionalize representative democracy in an ideal fashion, so that the standard in question and its underlying principles must be analyzed with special deference to the member states (paragraph 4); (iv) that to judge the need, advisability, and purpose of these arrangements is beyond the purview of an international supervisory body, since it involves eminently political considerations (paragraph 8); (v) that the Commission must, to the extent possible, avoid assuming the role of a supra-constituent body of the States with a view to “perfecting” their political structures (paragraph 9); (vi) and that, nevertheless, deference to the States must not acquire an absolute character, and the Commission is authorized to determine whether the mechanism for political representation adopted by a member state is manifestly arbitrary (paragraph 10, emphasis added).

          13.     I interpret applicable international law in a fashion very similar to that of Commissioner Goldman.  The standards cited above, in paragraph 11 of the present dissenting opinion, protect the right of all persons to participate in the government of their country, directly or through their representatives, and to take part in popular elections, which must be periodic, held at reasonable intervals, genuine, free, and based on secret ballot. None of them – and certainly not Article XX of the American Declaration – establishes a model of how a State is to organize itself internally to embody representative democracy in its institutions, nor how political representation is to be assigned among the country’s different states, provinces, electoral districts, constituencies, or territories.  To be sure, Article 3 of Protocol 1 (cited above) provides that elections must be held under conditions that ensure the free expression of the opinion of the people in the choice of the legislature (emphasis added). Nevertheless, as the European Court of Human Rights has established, citing the travaux préparatoires of Protocol 1, the article in question applies only to the election of the “legislature” or, at least, to one of its chambers, if there are two are more, but the word “legislature” does not necessarily refer only to the national parliament. Rather, it must be interpreted in the light of the constitutional structure of the State in question. [117] It must also be recalled that the parliamentary system is prevalent among the European countries that signed Protocol 1, so that national elections are, in fact, as a rule, elections of the legislature.  The respective standards of the inter-American system, on the other hand, do not make reference to legislatures.  Lastly, the reference to the legislature contained in Article 3 bears on the conditions necessary to ensure that the expression of the people’s will be free. No predetermined political-electoral system or model is specified, and the ruling cited reinforces this by accepting that said Article would not be incompatible with a situation in which not all legislative chambers (if there are more than one) are elected by the people.

          14.     Having clarified the issue of the scope of Article 3 to Protocol 1, we may return to the above affirmation, in paragraph 12, that the deference which international human rights bodies owe the States in this respect is not absolute. Commissioner Goldman believes that the Commission has the authority to determine whether the mechanism for political representation adopted by a State is manifestly arbitrary (his own emphasis).  The jurisprudence of the European Court of Human Rights has established that the conditions imposed by the State must not be such as to affect the very essence of the right and deprive it of its effectiveness, that they must be imposed in pursuit of a legitimate end, and that the means employed must not be disproportionate. [118]   For its part, the Human Rights Committee has established that although the International Covenant does not impose any particular electoral system, these systems should not "discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.” [119]

          15.     I see no reason not to adopt Commissioner Goldman’s formulation, if what it means by “manifestly arbitrary” is a mechanism for political representation that involves arbitrary discrimination in terms of Article II of the American Declaration of the Rights and Duties of Man, interpreted in the light of Articles 1.1 and 23.2 of the American Convention on Human Rights, or a mechanism for political representation that deprives persons or groups of the very essence of political rights or places restrictions on them without a legitimate purpose and in a manner that exceeds all reasonable bounds. It should be pointed out here that Article 21.2 of the American Convention provides that the law may regulate the exercise of the rights and opportunities referred to in its preceding paragraph by reason of residence, among other factors. In other words, a distinction made for reasons of residence is not arbitrary in itself.

          16.     The majority opinion, in analyzing the competence of the Commission in this case, cites the practice of this body and other human rights tribunals of applying human rights instruments to alleged human rights violations that may have occurred prior to the ratification of the instruments, but that are of a continuing nature so that their effects persist after the instruments enter into force. [120]   One may also recall the principle according to which the States may not invoke rules of domestic law to justify the failure to meet their international obligations.  Nevertheless, the crucial point does not lie here but rather in determining whether the signatory States of the American Declaration of the Rights and Duties of Man – and in this case, the United States – effectively assumed an obligation that may serve as a basis for establishing a violation in the present case.  On this issue, I am of the view that the principle should prevail that States only acquire obligations under international law by their consent (except for norms of customary law). It seems to me that it cannot be concluded, in light of international norms and practices, that the signatory States to the American Declaration consented to obligate themselves in respect of political rights in such a way that it could be determined that they have violated those obligations by failing to reform their political systems, unless that failure to reform was in manifest contradiction with other obligations that they have assumed in connection with political rights.

          17.     Having asserted the above, I believe it is also pertinent to express my position on the scope of the principle of progressivity, or pro-rights principle, often invoked as a criterion for guiding international rights bodies in their interpretation of human rights standards.  In my view, such standards should be interpreted so as to best protect the rights which they enshrine. In cases of doubt or ambiguity, the interpretation should favor the right rather than the restrictions. Finally, it should take into account changes of all types brought about by historical evolution, seeking to understand the content and scope of rights in a living and dynamic way, a way that preserves their essence and even strengthens them.  I am not unaware that the interpreter may go so far in this direction as to usurp the role of the legislator, but this is not the place to rehearse an ancient and hard-fought debate of legal theory. Suffice it to say that in my opinion, this interpretive role is a necessary and even inevitable one, but that, in carrying out an interpretation that updates the law or addresses it from a progressive stance, special care must be taken to proceed on a firm basis, advancing only to the very next logical step.

          18.     It does not seem to me that a violation of the rights of the petitioners can be established today, either under Article II or Article XX of the American Declaration of the Rights and Duties of Man on the basis of an interpretation like the one indicated in the last lines of the paragraph above.  Nevertheless, I do not dismiss the possibility that the evolution of international law and political practice in the Hemisphere may advance to a point where, had it had been reached today, it would have permitted us to come to a different conclusion.  Thus, I am of the view that the type of issues dealt with in the present case can and should be dealt with by the Commission and other organs of the Organization of American States through their promotional functions rather than by deciding on a claim or communication.  I believe such an approach to be more promising and constructive.

Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 24^th day of the month of October, 2003. (Signed): José Zalaquett.

[ Table of Contents | Previous | Next ]