Marco Tulio León*
*Law student and member of the 2019 International Criminal Court Moot Court Competition team from Universidad Francisco Marroquín (Guatemala).
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The Treaty Examiner, Issue 2 (May 2020), pp. 56-59.
When the very existence of a State, its security or the public order are in danger, international human rights law (IHRL) allows the restriction or suspension of certain guarantees to preserve the political community as a whole. Generally, those situations are named “states of exception” or “states of emergency”. Under the provisions of the 1969 American Convention on Human Rights (Convention), the State Parties must observe certain restraints and requirements when they avail themselves of the right of suspension of guarantees. Since due to the coronavirus pandemic a great number of the American States have resorted to these measures (1), this article will present and examine those requirements and their interpretation and application by the Inter-American Commission of Human Rights (the Commission) and the Inter-American Court of Human Rights (the Court).
The Legal Criteria for the Suspension of Guarantees
Article 27, paragraph 1, of the Convention reads as follows:
1. 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 do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.
According to the Commission, for the establishment of a state of emergency, the States Parties have to comply with these requirements of IHRL: the restrictions on certain rights or guarantees must (i) respect the principle of legality, (ii) be necessary in a democratic society and (iii) be proportionate to the aim pursued – in this case, the protection of health and life (2).
Regarding the first requirement, Article 30 of the Convention states:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established (emphasis added).
The Court, interpreting Article 30 of the Convention, has established that it refers to the formal concept of law, i.e., ‘a general legal norm… passed by the democratically elected legislative bodies established by the Constitution, and formulated according to the procedures set forth by the constitutions of the States Parties for that purpose’ (3). However, the same Court has determined that this requirement does not preclude the delegation of authority in this area, but that possibility must be enshrined in the Constitution and the exercise of that power must be subject to effective control (4). This last finding recognized the power granted in certain American States to the executive branch to enact law decrees or executive decrees suspending some guarantees in specific cases (5).
Additionally, regarding the necessity of the declaration of a state of emergency, the State must prove that a real, serious, imminent, and exceptionally grievous danger exists that threaten its very independence or security and justifies that measure (6).
The Suspension of Specific Guarantees and Its Limits
In its paragraph 2, Article 27 of the Convention establishes a list of guarantees that cannot be suspended in any case. Thus, except those mentioned in that provision, all the other rights guaranteed by the Convention could be suspended. That paragraph states as follows:
2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.
About the last phrase of this paragraph, the Court has established that the judicial guarantees essential for the protection of the rights that cannot be suspended or derogated, ‘include habeas corpus (Art. 7(6)), amparo, and any other effective remedy before judges or competent tribunals (Art. 25(1)), which is designed to guarantee the respect of the rights and freedoms whose suspension is not authorized by the Convention’ (7).
Under Article 27, as interpreted and applied by the Commission, the restraints imposed on guarantees subject to suspension must comply, at least, with the following parameters: legality, necessity, proportionality, timeliness, compatibility with other obligations under international law and nondiscrimination (8).
The legality requirement is understood as interpreted in the preceding paragraphs. Proportionality requires ‘that suspension of rights or guarantees is the only means of addressing the situation, and that it cannot be dealt with by the use of the regular powers of government, and that the measures taken do not cause greater harm to the right that is suspended in comparison with the benefit obtained’ (9). The necessity parameter can be understood as incorporated in the previous one since it requires that the suspension or restriction of rights is the only option to deal with the emergency due to the lack of a less drastic one. The temporality or timeliness requirement means that the measures taken must be in force only ‘for the period of time strictly required by the exigencies of the situation’ (10). The next requirement, referring to other obligations under international law adopted by a State Party in question, establishes that the suspension of guarantees provided for in Article 27 shall not be inconsistent with other conventional or customary obligations binding the State Party. In this regard, other provisions of human rights treaties, such as Article 4 of the 1966 International Covenant on Civil and Political Rights (ICCPR), have to be taken into account when resorting to a state of emergency or suspension of guarantees (11). Finally, Article 27(1) requires that the measures adopted ‘do not involve discrimination on the ground of race, color, sex, language, religion, or social origin’.
Formal Obligations and Interpretation of Article 27 of the Convention
Article 27, paragraph 2, of the Convention, establishes:
3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.
This provision is similar to Article 4(3) of theICCPRand imposes a formal obligation over the States to notify its decision to the other States Parties through the Secretary General of the Organization of American States. Moreover, that provision requires the States to justify the suspension of guarantees since they must provide the reasons that gave rise to the state of emergency and to set the duration of such measure, requirements that are linked to the substantive parameters of necessity and timeliness that are mandated by Article 27(1) of the Convention.
Article 27 of the Convention must be interpreted not only according to the general rule of interpretation of treaties (12) but also under the special rules of interpretation laid down in Articles 29 and 30 of the same Convention. It is worth mentioning certain aspects of these two Articles: First, Article 29 enshrines the rule of restrictive interpretation, the negative counterpart of the pro homine or pro persona principle of interpretation, i.e., that no rule contained in the Convention can be interpreted as restricting or excluding other human rights recognized by other treaties or municipal law or that are inherent in the human personality; thus, any rule imposing restrictions on rights must be narrowly construed (13). Second, Article 30 establishes another limit to the suspension of guarantees, since it requires the enactment of a law or another rule of similar character (14).
Finally, Article 29(c) establishes a substantive limitation stating that the guarantees derived from representative democracy as a form of government shall not be suspended and within those guarantees are the judicial procedures essential for the protection of the rights that cannot be suspended or derogated (15). The Court has pointed out that the existence and effectiveness of these guarantees derive from Article 27(1) of the Convention, since that provision establishes a ‘general requirement that in any state of emergency there be appropriate means to control the measures taken, so that they are proportionate to the needs and do not exceed the strict limits imposed by the Convention or derived from it’ (16). Consequently, if the rule of law and a republican government are to be maintained to avoid the abuse of power during a state of emergency, and to secure the full restoration of the guarantees suspended after the cessation of the situation that gave rise to it, a strong and functional judiciary is required.
PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 29 May 2020.
Endnotes
1. United Nations Treaty Collection, International Covenant on Civil and Political Rights. Depositary Notifications (CNs) by the Secretary-General of the United Nations under Article 4(3) (Treaty Reference IV-4), updated as of 25 May 2020, available at https://treaties.un.org/Pages/CNs.aspx?cnTab=tab2&clang=_en.
2. Inter-American Commission on Human Rights, Pandemic and Human Rights in the Americas, Resolution No. 1/2020, 10 April 2020, p. 10.
3. Inter-American Court of Human Rights, The word “laws” in article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, 9 May 1986, at paragraph 38.
4. See supra note 3 at paragraph 36.
5. See, e.g., Article 138 of the Constitution of Guatemala; Article 187 of the Constitution of Honduras; Articles 212 to 216 of the Constitution of Colombia; and others.
6. See supra note 2, p. 10; Claudio Grossman, ‘A framework for the examination of states of emergency under the American Convention on Human Rights’ (1986) American University International Law Review, Volume 1, Issue 1, p. 42.
7. Inter-American Court of Human Rights, Judicial guarantees in states of emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87, 6 October 1987, at paragraph 41.
8. See supra note 2, pp. 8, 10 and 11.
9. See supra note 2, p. 10.
10. Article 27(1) of the Convention.
11. See supra note 6, p. 52.
12. Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.
13. See supra note 6, p. 40.
14. See supra page 56.
15. See supra note 7, at paragraph 34 et seqq.
16. See supra note 7, at paragraph 21.
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