INTERNATIONAL TREATIES, THE RIGHT TO INFORMATION AND THE RIGHT TO PRIVACY
Alonso GÓMEZ-ROBLEDO VERDUZCO*
Original Text (Spanish) PDF
I. Introduction. II. Article 133 of the Mexican Constitution. III. International Treaties and Jurisprudence. IV. International Human Rights Treaties. V. International Treaties and the Right to Privacy. VI. International Treaties and the Right to Information. VII. The Inter-American Human Rights Protection System. VIII. Conclusions.
1. In this essay we start from the various conclusions we have reached in several articles:
a) Since human rights are about human dignity, among said rights there can be no conflict or confrontation, but only harmony and compatibility. If it were not so, they would breach, violate or annul the rights and liberties of others because they are for all and of all, for and of every human being.1
b) The mass media is a real power and the instruments it uses classifies it as an ideological type of power since it conditions the conduct of another power, group or person through psychological coercion, knowledge or both, and regardless of free will and resistance.2
c) Establishing the rules of the game —mainly norms and legal acts— in the wide-ranging issue of information responds to the interest of all: society, the mass media, organizations and individuals.3
d) In Mexico, the legal framework —for defending individuals in terms of the right to information and other human rights which must be made compatible with the first, as in the case of the right to privacy and honor-– is anachronistic, deficient and insufficient. However, there are aspects that have been neglected but that are important and form part of our corresponding legal framework: the application of Article 6 of the Mexican Constitution and the existence of international treaties and conventions Mexico has ratified.4
e) It is indispensable to begin creating the habit for people whose rights and liberties are violated in terms of legal aspects to resort to jurisdictional means to defend themselves, for attorneys to assert the scope of Article 6 of the Constitution,5 as well as that of international treaties ratified by Mexico, before the courts; for judges to begin establishing legal precedents and for the most important cases to be brought to the attention of the Supreme Court of Justice; for corresponding legislation to be created based on “legal reasons” made up of court rulings and jurisprudence, as has occurred in other countries.6
2. In this essay, emphasis will be placed on the international aspect. We are interested in highlighting the international treaties, conventions and agreements Mexico has ratified in these fields. As a result, they are internal norms of our legal system and, as such, must be applied. Both lawyers and judges should know them well, the former to assert them and the latter to apply them. Thus, the legal framework of the right to information and the respect to privacy would be greatly enriched to in turn benefit human rights protection and defense of Mexicans and the Mexican democratic system.
II. ARTICLE 133 OF THE MEXICAN CONSTITUTION
1. Article 133 of the 1917 Mexican Constitution states that:
This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the supreme law of the whole Union. The judges of each State shall conform to the said Constitution, the laws, and treaties, in spite of any contradictory provisions that may appear in the constitutions or laws of the States.
This is a very important article that establishes several of major consequence:
a) The supremacy of the Constitution.
b) The hierarchy of the norms in the Mexican legal system.
c) International treaties, which are in accordance with the Constitution as entered into by the President of the Republic with the approval of the Senate, are internal norms of the Mexican legal system.
d) There is no hierarchy of any kind between federal and local norms, except in the case of apparent contradictions. This problem is solved by examining which authority is constitutionally empowered to issue said norm.
e) Local judges shall respect and enforce the general Constitution of the Republic despite any contradictory provisions that may appear in local legal systems.
f) All authorities, even administrative ones, must honor the supremacy of the constitution. Thus, they are not to enforce a law if it is unconstitutional.
Of these aspects, we shall examine points b) and c) above.
2. The quid to knowing the hierarchy of the norms in the Mexican legal system is found:
a) In the expression “the laws of the Congress of the Union that emanate therefrom” (from the Constitution).
b) In a hermeneutic interpretation of constitutional law itself. In other words, Article 133 should be interpreted as related to other constitutional precepts.7
Inspired by an assertion made by Mariano Coronado, Mario de la Cueva states that the Congress enacts laws that are developed, interpreted, modified and approved based on the same procedure. But these laws can be classified into two types: those that materially and formally emanate from the Constitution and those that only emanate formally from it. The first are those that are developed by constitutional precepts. They “are the body and soul of the Constitution that expand; determining, specifying and stating with more precision and in each of its details, what the body and soul of the Constitution are and what they mean…”.8 On the other hand, laws that emanate formally could well have emanated from local congresses if it had been so set forth by the Constitution itself.
To back his position, Mario de la Cueva recalls that transitory Article 16 of the Constitution refers to the organic laws of the Constitution as a different category from that of the laws that Congress should develop according to the powers granted to it by Article 73 of said Constitution.
In a recent and outstanding treatise on constitutional law, Héctor Fix-Zamudio and Salvador Valencia state that:
The hierarchical order of norms is mainly formed of the following levels: a) constitutional norms; b) laws from the Congress of the Union that emanate from the Constitution and international treaties; c) federal laws and local laws. Within the Mexican legal system, there are naturally many legal norms other than those mentioned, such as the regulations issued by the Executive, municipal provisions in states and a plethora of individual legal norms.9
These writers point out that the laws that emanate from the Constitution can be organic and regulatory.
Mario de la Cueva, Héctor Fix-Zamudio and Salvador Valencia’s expositions are correct because there are laws in Mexico that emanate from the Constitution. These are the constitutional laws, which are materially different from federal ones. As a result, there is no principle of hierarchy, but one of jurisdiction between federal and local legislation, due to the following reasons:
a) In its first paragraph, Article 41 of the Constitution establishes that it is the Constitution itself that defines the jurisdiction of federal powers and those of the states, powers that must be adjusted according to said jurisdiction.
b) The principle of competent authority is —according to Article 16 of the Constitution— an individual guarantee. That is, Mexicans have the human right to know exactly which authority is constitutionally empowered to act.
c) In Mexico, concurrent powers are not recognized in Mexico10 in view of the provisions in Articles 16, 40, 41 and 103 of the Constitution that aim at, among other things, not having any ambiguity or uncertainty as to which authority is the competent one to take action.
Article 40 stipulates that state action is limited to its internal system.
d) Article 124 of the Constitution is very clear by stating that the powers that are not expressly conceded to the Federation are understood as reserved to the states. That is, the limitations of federal Mexican State powers are unbending and precise, and do not admit ambiguity of any kind.
e) Article 103 of the Constitution sets forth the admissibility of Amparo proceedings against laws or acts that infringe upon or restrict the powers that the constitution grants to federal or local authorities.
f) Article 105 of the Constitution establishes constitutional controversies or unconstitutional acts. One of the causes for admission is precisely the violation of the division of power in the Federal Mexican State as established in the Constitution.
g) If the laws that emanate from the Constitution, as referred to by Article 133, are federal, these laws have supremacy over local ones in Mexico. Therefore, all the constitutional articles mentioned would contradict Article 133. There can be no contradictions in a constitution. Furthermore, those articles are updated every day. Simply think of the amparo proceedings that are presented because of a violation to the right to competent authority —Article 16— and the principle of division of jurisdiction between federal and local powers —Article 124—.
3. The above leads us to the following conclusions:
a) Without a doubt, the international treaties ratified by Mexico constitute internal norms in the Mexican legal system and they exist in order to be enforced. If they are not, the Mexican legal system is impoverished if part of said system is not updated. The above statement is particularly valid in dealing with human rights.
b) In Mexico, there is no supremacy between federal law and local law. Thus, Article 133 refers to constitutional laws with the expression the laws that emanate from it.
Therefore, constitutional laws and international treaties have the same hierarchy in the Mexican legal system. If any contradiction between them were to exist, the general principles of law would be applied, such as the predominance of the most recent law over the previous one and of the particular law over the general one.
c) An international treaty holds a higher rank than federal law. In the event of a contradiction between them, the first one prevails.
4. We do not overlook the fact that various writers deny the existence of constitutional laws. For them, federal law in Mexico has a higher rank than that of local law. This contradicts the entire engineering of the 1917 Constitution and the notion of the Mexican federal State contained in the Constitution. Among these writers, we can mention Gabino Fraga,11 Eduardo García Máynez12 and Elisur Arteaga Nava.13
III. INTERNATIONAL TREATIES AND JURISPRUDENCE
1. Mexico is part of the 1969 Vienna Convention on the Law of Treaties, in force as of January 27, 1980, and ratified by Mexico on September 25, 1974. This Convention adheres to the more generalized modern criteria in what refers to the use of the term “treaty”, as the most adequate one to cover all the instruments in which an international commitment is indicated in some way, whatever its particular designation, such as convention, protocol, pact, charter, agreement or exchange of notes.
This “Treaty of Treaties” was approved by 79 votes in favor, 19 abstentions and one much-lamented vote against from France, because of the provisions regarding jus cogens.14
Every State is bound to abide in good faith, not only the text, but also the purpose itself of the international treaty to which it is party. Noncompliance or the breach of any of the obligations stipulated in the treaty is subject to be sanctioned by international law through the mechanism of international responsibility.
The particular designation given to the international instrument is not important for it to be thought that its nature changes because of its designation. However, in Mexico —as well as in the United States— the faulty custom of celebrating an endless number of international agreements has prospered. These agreements, which are real treaties, produce legal effects governed by international law and, regardless of that, they are not submitted for Senate approval. As to the rest, the U.S. practice of obtaining a two-thirds Senate majority in favor is not even required in Mexico. It is enough for the treaty to be approved simply by a majority vote.
In general terms, it can be said that both common and conventional international law has never categorically accepted that a State may invoke as invalidating that its consent to be bound by a treaty is a violation of a provision of its internal law regarding competence to conclude treaties.
However, the Vienna Convention on the Law of Treaties accepted a moderate stance by establishing that in the event that a violation is manifest —if it would be objectively evident to any State conducting itself in good faith— and concerned a rule of its internal law of fundamental importance. In this case, the State could argue this circumstance as an error in its consent.15
2. Following Antonio Cassese, Miguel Carbonell notes that relationships between the Constitution and international treaties can be found as having four different forms:
a) Constitutions do not have any norm for this issue.
b) Constitutions state that treaties must be complied with, but they are not granted any hierarchy higher than that of the law of the land.
c) Constitutions rule that treaties are found at a level lower than that of the Constitution itself, but prevail over ordinary law and that legislators cannot modify or alter the treaty by enacting a new law. This is the situation that prevails in Germany, France and Greece.
d) Constitutions admit the possibility that the treaty can even modify or revise constitutions. This was the case of the 1978 Peruvian Constitution, which has already been partially repealed.16
The Mexican Constitution accepts the existence of treaties but, with the January 18, 1934, reform, it must be in accordance with said Constitution.17 This means that in Mexico, the only supreme norm is the Constitution.
For them to be in force in Mexico, all international treaties must:
a) Be in accordance with the Constitution
b) Have been entered into by the President of the Republic and approved by the Senate with the ordinance —as set forth above— of a majority vote of the senators present.
Therefore, international treaties are positioned in a lower level than that of the Constitution, at the same level as that of constitutional laws and at a higher level than that of federal and local laws.
As an internal norm in the Mexican legal system, the international treaty should play an important role in the legal system: lawyers must assert them and judges should apply them in their decisions.
3. The Supreme Court of Justice’s opinion has always recognized the international treaties that comply with the requirements of Article 133 of the Constitution, as internal norms of the Mexican legal system. Discrepancies are found in whether international treaties have a higher rank than that of federal laws. Thus, the highest Mexican court has held that “it cannot be set forth that treaties have more of a legal obligation than the laws of Congress” and that
...since the mentioned legal provision does not defend the opinion on the supremacy of international law over that of internal law, but adopts the rule that international law is part of national law. While it does acknowledge the mandatory force of treaties, it does not give said treaties a superior rank to the laws of Congress that arise from this Constitution, but that the rank it grants to the ones and the others is the same.18
In November 1992, the Supreme Court of Justice sitting en banc unanimously ruled opinion P. C/92, which follows the school of thought that had prevailed in this High Court. This opinion textually states:
FEDERAL LAWS AND INTERNATIONAL TREATIES HAVE THE SAME NORMATIVE HIERARCHY. According to Article 133 of the Constitution, both the laws that come from said Constitution and the international treaties entered into by the Federal Executive, approved by the Senate and that are in accordance with it, hold a rank immediately below that of the Constitution in the hierarchy of the norms in the Mexican legal system. Having the same hierarchy, international treaties cannot be criteria to determine the constitutionality of a law or vice versa. Therefore, the Laws of Chambers of Commerce and of Industries cannot be considered unconstitutional for going against that which is set forth in an international treaty.19
These Supreme Court opinions were erroneous and simplistic. The conclusion that can also be reached from them is that federal law has a higher rank than that of local law, which contradicts several constitutional articles and ruptures the structure of the federal State as erected by the Mexican Constitution. We can affirm that these jurisprudential opinions were not applied with all their consequences and implications since the legal and social reality of federal law does not displace local law. In the case of an apparent contradiction between them, the issue defined by federal judges is which authority has the power to enact that law according to the Constitution.
On this important matter, the most recent Supreme Court of Justice opinion, which moves away from traditional criteria and erroneously-held opinions, was established when the Court sitting en banc ruled on the Amparo in Review 1 475/98 —National Air Traffic Controllers Union— on May 11, 1999, which textually states:
INTERNATIONAL TREATIES ARE HIERARCHICALLY PLACED ABOVE FEDERAL LAWS AND BELOW THE FEDERAL CONSTITUTION. In doctrine, the question regarding the hierarchy of the norms of our law has persistently been posed. It is unanimous that the Federal Constitution is the fundamental norm and even though in principle the expression “... (they) will be the Supreme Law of the entire union...” seems to indicate that not only the constitution is supreme, the objection is overcome by the fact that laws must emanate from the Constitution and be enacted by a legally established body, such as the Congress, and that treaties must be in accordance with the constitution. This clearly indicates that only the Constitution is the supreme law. Jurisprudence and doctrine have found different solutions for the problem regarding the hierarchy of other norms in the system, among which the following stand out: supremacy of federal law over local law and the same hierarchy of both, in their open and honest variations, and with the existence of “constitutional laws”, and the one in that supreme law is the one deemed constitutional. Nonetheless, this Supreme Court of Justice believes that international treaties are found on a second level, immediately under the Constitution and above federal and local law. This interpretation of Article 133 of the Constitution comes from the fact that these international commitments are assumed by the Mexican State as a whole and they commit all its authorities before the international community. This explains why legislators have empowered the President of the Republic to sign international treaties in his role as Chief of State and likewise, the Senate is involved as a representative of the will of the federal states and by means of its ratification binds its authorities. Another important aspect to consider in this hierarchy of treaties is the one regarding the fact that in this matter there is no limitation of competence between the Federation and federal states. That is, federal or local competence is not taken into account in the contents of the treaty, but that by express mandate of Article 133 itself, the President of the Republic and the Senate can obligate the Mexican State in any matter, regardless of the fact that for other effects it may be under the jurisdiction of the federal states. As a result of the above, the interpretation of Article 133 leads one to consider federal and local law in third place within the same hierarchy in view of that which is set forth in Article 124 of the Constitution, which orders that “The powers that are not expressly conceded by this Constitution to federal officials are understood to be reserved to the States.” It is not overlooked that in its previous structure, this Supreme Court had adopted a different position in opinion P. C/92, published in the Gazette of the Weekly Federal Court Report, number 60, corresponding to December 1992, page 27, under the heading: “FEDERAL LAWS AND INTERNATIONAL TREATIES HAVE THE SAME NORMATIVE HIERARCHY”. However, this Court sitting en banc deems it fitting to discard said criteria and take on the one that considers treaties to have a higher hierarchy even above federal law.
We believe that this judicial precedent, which partially repeals the others, is correct and very important due to the following reasons:
a) It holds that treaties are found positioned immediately under the Constitution and above federal law and local law.
b) It mentions that constitutional laws, and though it does not expressly admit their existence, it really does accept them because if not, it could not reach the conclusion that there is no hierarchy between federal law and local law in Mexico.
c) In making said interpretation, it respects the true sense of several and very important articles in the Mexican Constitution, which have been mentioned above. Even though the new opinion only highlights Article 124, which establishes the general rule for division of power between the Federation and federal states.
d) The arguments that uphold this opinion could in the end be summed up in one idea: international treaties like constitutional law are norms for the unity of the federal State and not of either of the two bodies that form that Federal State: the Federation and federal states.
e) The opinions then expressed by Mario de la Cueva and Jorge Carpizo on the hierarchy of the norms in the Mexican legal system are accepted. This interpretation respects the proper sense of several and various articles of the Constitution.
The ruling commented here has been criticized,20 basically because it is believed that its argument is not as deep as it should be and because conclusions that do not come from the arguments can be reached. However, its virtues are more numerous than its possible defects. Its conclusions are correct and it takes into account other articles of the Constitution itself in order to interpret Article 133 of the Constitution, without which erroneous conclusions will always be reached. It is probable that in the future the arguments and logical reasoning of this important opinion can be clarified, but the conclusions will be the same because if they are not, it then destroys the legal hermeneutical understanding of the Mexican Constitution.
4. Thus, we return to the first point made: the international treaties and conventions Mexico has ratified are internal norms of the Mexican legal system which should be more and better well-known so they may be asserted by lawyers and applied by judges, especially in order to strengthen the defense and protection of human rights.
In Mexico, international treaties have the same hierarchy as that of constitutional laws and are therefore placed at a higher level than that of federal and local legislation.
IV. INTERNATIONAL HUMAN RIGHTS TREATIES
1. The right to information and privacy are human rights that have special force and that every legal system must respect if it is truly a democratic regime.
Currently in the world, there is a constitutional school of thought that holds that international human rights treaties hold special importance because of the subject of their contents and that therefore, these treaties should have a very special legal hierarchy.
Let us see some examples in Latin America, a region that is so close to us because of various and multiple reasons.
Article 46 of the 1985 Guatemalan Constitution, states: “Pre-eminence of International Law. The general principle is established that in matters of human rights, treaties and conventions signed and ratified by Guatemala are pre-eminent over domestic law.”
Article 105 of the 1979 Peruvian Constitution states that: “The precepts contained in international human rights treaties have constitutional rank. They cannot be modified except by the procedures that are in effect for the reform of the Constitution.”
In two articles, the 1993 Peruvian Constitution states:
Final and Transitory Dispositions
Fourth: Legal norms relative to the rights and liberties recognized in the Constitution are interpreted in conformity with the Universal Declaration of Human Rights and treaties and international agreements ratified by Peru that cover the same rights.
Article 56 states that:
Treaties must be approved by Congress before their ratification by the President of the Republic, whenever they deal with the following subjects:
1. Human Rights.
2. The nation’s sovereignty, domain or territorial integrity.
3. National defense.
4. Financial obligations of the government.
In this sense, it is clear that the 1993 Peruvian Constitution took several steps back in terms of the 1979 constitution, and doctrine has understood it to be so.21
Article 50 of the 1980 Chilean Constitution, reformed with the 1989 plebiscite, states to this regards that:
…The exercise of sovereignty recognizes as a limitation the respect to the essential rights that emanate from human nature. It is the responsibility of State bodies to respect and uphold said rights, guaranteed by this Constitution, as well as by the international treaties ratified by Chile and that are in force.
The same trend is found in Article 48 of the 1949 Costa Rican Constitution, reformed in 1989.22
Article 142 of the 1992 Paraguayan Constitution states: “International treaties concerning human rights cannot be renounced, but must follow the procedures established herein for the amendment of this Constitution.”23
2. The constitutional articles mentioned are found to be within a great international school of thought on human rights protection. The Constitutions originate from the stance that a legal system is created and its ultimate purpose is to recognize and defend human dignity and that the selfsame international system is based on this principle: the existence of a group of countries whose basis is precisely human dignity. As a result, a human rights violation is not only an issue concerning the State in which it took place, but the international community.
Several Latin American countries accept this concept. The consequence is the declaration that ratified international human rights treaties prevail over the Constitution itself. It is the predominance of international law in a specific aspect, but which is extremely important.
In other constitutions laws there is the principle that ratified human rights treaties have constitutional hierarchy. In other words, they are constitutional norms and, as a result, can only be reformed by following the procedures that the Constitution itself follows for its modification.
Mexico is still quite far from these modern concepts, which could be summarized in Peter Häberle’s accurate statement: “Democracy is the organized result of the dignity of man, it is no more, but nor is it any less.”24
In the case of Mexico, for the time being, it is at least essential for human rights treaties that have been ratified to be known by legal circles —indeed by society too!— so that, as the internal norms they are, they may be argued by lawyers and applied by judges. If that happened, we would take many steps forward in human rights defense and protection in Mexico.
This is precisely the end we strive to reach with this essay in terms of two very important human rights that are not truly well protected in Mexico, partially due to ignorance and partly due to legal deficiencies and anachronisms. However, for the most part, it is because they are not asserted before the courts for various reasons, which we have mentioned on another occasion.25
In Mexico, the protection and defense of the right to information and the respect to privacy —for which there is great contempt— would see themselves greatly strengthened if the ratified international treaties were applied. According to Article 133 of the Mexican Constitution these treaties, as we have repeatedly mentioned, are internal norms of the nation’s legal system.
V. INTERNATIONAL TREATIES AND THE RIGHT TO PRIVACY
1. If the need for privacy is inherent to every human being, if a life divested of protection from undesired interference and abusive indiscretion allow each person to freely extend himself, the protection of privacy would thus also be a determining factor of the democratic nature of society as a whole.
Thus, protection of the scope of an individual’s privacy is in turn a condition and guarantee of any democratic regime.
It is undeniable that the difficulty there is to define the concept of respect to privacy mainly arises from the fact that several apparently opposing factors are in play. Among these factors, the individual right to discretion, on one hand, and the right to collective information, on the other, should be highlighted.
It cannot be ignored that the media predominantly takes care of the people who for various motives and reasons have come to attain a public profile.
But the simple notoriety of a person does not deprive him in any way of his or her particular “sphere of privacy”. The acts associated with his or her public doings are subject to information and scrutiny on behalf of the community, but they will be protected by “reserve”. That is, all actions of his or her private life that do not have any effect on public doings is excluded from the above principle.26
The mass media can gather news of a private nature in a social interest story, but it cannot be allowed to unaccountably offer to the public news that damages people’s sphere of reserve.
Therefore, it is obvious that the fundamental issue lies in reaching a compromise between both types of interests: the public interest in information and the private interest in privacy (to be let alone or diritto di esere laciati soli).
The right to information ceases to exist the moment people’s sphere of privacy is violated.
The mass media cannot aim to become truly “autonomous public powers” that are unregulated by any legal or ethical system, or any other system that infers either of them. It can never be reiterated enough, that freedom of information, the freedom of the press and telecommunications in general cannot be conceived as “absolute rights”, and that they are irremediably —to put it that way— condemned to co-exist with another series of rights, among which the right to privacy fundamentally and primarily stand out.
The protection of privacy before the State consists on one hand of the right of each one to keep the acts of private life secret before public authority, and on the other, in the right that the information about private life that the State has will not be divulged in any way, except with the prior consent of the person involved or by a legal order. The formula could be: the respect to privacy imposes a dual obligation on the State: no interference and no disclosure, to guarantee privacy, autonomy and the peace to which a person has a right to, outside public life.27
2. The Universal Declaration of Human Rights adopted on December 10, 1948, by the United Nations General Assembly, under the presidency of Mr. Luis Padilla Nervo —and to a great extent inspired by the 1789 French declaration— introduces the great principles in the matter of human rights. As of this moment, these principles would be a source of inspiration to numerous Constitutions and would exercise a very powerful influence on the evolution of general international legal doctrine.
Article 12 of the Universal Declaration states that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such inference or attacks.”
It should also be mentioned here that the age-old dogmatic dispute regarding the legal scope of the Declaration has already been broadly overcome. Even if the Declaration itself did not have at that time strict, linking legal value due to the formal nature of this act, that is, a United Nations General Assembly resolution, no one can no longer seriously doubt that the principles in the Declaration have gone on to form a definitive part of positive international law.28
3. Meanwhile, the American Declaration on the Rights and Duties of Man, approved in the Ninth Conference of American States in Bogota, 1948, states the following in Chapter I, Article V: “Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.”29
On commenting on the American Declaration, one of the Mexican delegates to the 9th Conference in Bogota held that:
...because of its international nature, it occupies a different legal field from that of the declarations included in the political constitutions of the States in the continent. The similarity between both lies in that they lead to the same distant end, which is to protect human beings, but their immediate ends and means of enforcement are different.30
4. The American Convention on Human Rights, signed in San Jose, Costa Rica, on November 22, 1969, and adopted at the Inter-American Specialized Conference on Human Rights, entered into effect on July 18, 1978.
Mexico ratified this American Convention on March 24, 1981, and it was published in the Official Gazette, on May 7th of that year:
Article 11. Right to Privacy
1. Every one has the right to have his honor respected and his dignity recognized.
2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.
Everyone has the right to the protection of the law against such interference or attacks.
The second paragraph of Article 13, which consecrates the freedom of thought and of expression, states the following:
The exercise of the right provided for in the foregoing paragraph (freedom of thought and expression) shall not be subject to prior censorship, but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others.
However, further on, in this same Convention or Covenant of San Jose, Costa Rica, we find with all the precision of the text of one of the most important rights in the matter: the right of reply:
1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.
2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred.
3. For the effective protection of honor and reputation, every publisher, and every newspaper, motion picture, radio, and television company, shall have a person responsible who is not protected by immunities or special privileges.31
5. The International Covenant on Civil and Political Rights was adopted and opened for signature, ratification and accession by UN General Assembly through Resolution 2200A (XXI) of 16 December 1966.
This Covenant entered into force on March 23, 1976, that is, three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession (Article 49).
Mexico, on depositing its instrument of accession to the Covenant on March 23, 1981, would formulate two interpretive statements (Articles 9, paragraph 5, and 18) and two reservations that are not related to the matter in question.
The passing of this Covenant in Mexico was carried out on March 30, 1981, and was published in the Official Gazette on May 20th of said year.
In presenting the reasons to adhere to said Covenant, it was established that it was not deemed pertinent to recommend Mexico’s adherence to the facultative protocol of the Covenant on Civil and Political Rights (16-December-66 and in force as of 23-March-76). This protocol endows the Human Rights Committee (established in part IV of the Covenant) competence to receive and consider communications from individuals that are under the jurisdiction of said State, nor that of drawing up the declaration set forth in Article 41 of the Covenant to acknowledge the competence of the Committee in terms of accusations of one State against another, since it was believed that “...the legal and political structure of our country —unlike that of others— allows for the correction of failings that exist in an internal human rights protection system.”32
On the other hand, it is necessary to acknowledge that the duality of covenants, in terms of the one pertaining to civil and political rights and the other regarding economic, social and cultural rights (1966), is widely justified by the very different nature of the obligations included in them.
The provisions of the Covenant on Civil and Political Rights define first-rate freedoms. They are immediately applicable provisions, while with the economic, social and cultural rights in the second covenant, the States commit themselves to act in a way that “progressively” ensures full exercise of the rights outlined therein.33
For our purposes, the provision contained in Article 17 of the International Covenant of Civil and Political Rights is the one that shapes an individual’s right to privacy, the protection of his reputation, and the respect to family life, home, correspondence and his honor.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.34
6. While it is important to know the contents of the ratified treaties, it is equally important to analyze the interpretations made by the competent bodies for said purpose, according to the international instruments, since said interpretation could be upheld before national courts.
In this essay, we will examine several opinions of said bodies, which will help us understand how important it is to have them in mind in defending human rights in general and specifically in the defense of the rights, subject matter of this study.
In case 9178 (Costa Rica) dated October 3, 1984, (Resolution N.17/84), the petition filed by Mr. Stephen Schmidt on Article 44 of the American Covenant on Human Rights, signed and ratified by Costa Rica, was declared admissible by the Inter-American Human Rights Commission.
The Inter-American Commission observed that Mr. Stephen Schmidt had exhausted all remedies under the internal jurisdiction of Costa Rica since a final decision had been handed down by the Third Section of the Supreme Court of Justice of the Republic of Costa Rica. Furthermore, the remedy of amparo was no longer pertinent because it does not apply against Supreme Court proceedings.
The Commission also stated that an appeal against a decision of a government office was not feasible precisely because the petitioner was not seeking membership in the Colegio de Periodistas [Association of Journalists].
As to the remedy of unconstitutionality, it was proven that this remedy was not feasible either, since the Supreme Court of Costa Rica had repeatedly ruled that obligatory membership was consistent with the Constitution’s provisions and it was reasonable to expect that this decision would be repeated, in which case, international legal doctrine would be applied. In other words, there was no need to exhaust said processes or remedies that are clearly inefficient in a given legal system.
Further along, the Inter-American Commission upheld that the provisions of the human rights conventions and covenants that govern:
...what is currently called the right to information, which consists essentially in seeking, receiving and distributing information and ideas. This right comprises the freedom of access to information sources, equality for all in the free use of transmission facilities, freedom of transmission and dispatch of news without prior censorship of any kind, the right to transmit the truth to others, and the right to be informed and to seek all information desired according to each one's understanding.
It must be observed that this right is not absolute, since Article 32 of the Convention provides that “the rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society. Moreover, Article 13 of the American Convention establishes responsibility in keeping with domestic laws in order to guarantee: “a) respect for the rights or reputations of others, or b) the protection of national security, public order, or public health or morals.” This implies that the press is free, but responsible under the laws in the cases mentioned.35
7. Through an official letter dated October 1, 1985, the Costa Rican government submitted to the Inter-American Court of Human Rights a request for an advisory opinion regarding the interpretation and scope of Article 14.1 (right of reply) of the American Convention on Human Rights, in relation to Articles 1.1 (the obligation to respect rights) and Article 2 (the obligation to adopt the provisions of domestic law/domestic legal effects) of that instrument.
Article 14 of the 1969 American Convention stipulates that anyone injured by inaccurate or offensive statements or ideas” (donnés inexactes our des imputations diffamatoires”) has the right to reply under such conditions as the law may establish.
The Court held, inter alia, that the opinion that the phrase “under such conditions as the law may establish” would merely empower the State Parties to adopt a law creating the “right to reply or correction” without requiring them to guarantee it if their internal legal system does not provide for it. This is an opinion that cannot be consistent with either the “current sense” of the terms used or the “context” of the Convention.
...the right of reply or correction for inaccurate or offensive statements disseminated to the public in general is closely related to Article 13(2) on freedom of thought and expression, which subjects that freedom to the “respect of the rights and reputations of others”...
The obligations of the States Parties set out in Articles 1(1) and 2 of the Convention are applicable to the right of reply or correction. It could not be otherwise, since the purpose of the Convention is to recognize individual rights and freedoms and not simply to empower the States to do so...36
As to the above points in the litigation, the Court sitting in San Jose, Costa Rica, on August 29, 1986, unanimously ruled the following:
A. That Article 14(1) of the Convention recognizes an internationally enforceable right to reply or to make a correction which, under Article 1(1), the States Parties have the obligation to respect and to ensure the free and full exercise thereof to all persons subject to their jurisdiction.
B. That when the right guaranteed by Article 14(1) is not enforceable under the domestic law of a State Party, that State has the obligation, under Article 2 of the Convention, to adopt, in accordance with its constitutional processes and the provisions of the Convention, the legislative or other measures that may be necessary to give effect to this right.37
8. The European Convention is of great importance because of its subject matter and its decisions. Especially because with the depth and seriousness of their concepts, these decisions influence Inter-American Court of Human Rights criteria.
Thus, judges of this Continent should be familiar with said decisions because they form a framework that can be of great use in the defense and protection of the rights being analyzed.
The European Convention on Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, by the member States of the Council of Europe, entered into force on September 3, 1953. It first additional protocol signed in Paris on March 20, 1952, and entered into force on May 18, 1954.38
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, states as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.39
Thus, paragraph 1 of Article 8 of the European convention on Human Rights establishes the principal tenet of the right every person has regarding private and family life, his home and his correspondence:
a) The European Court has given an extended interpretation on the right to privacy.
Regardless of the “intimate circle” in which each one can lead his personal life as best suits him, with no bearing at all on the world outside said circle, the respect to privacy should also encompass an individual’s right to work and develop relationships with his peers.
Thus, there is no reason in principle to exclude professional or business activities from private life. This type of activities allows a person to pursue ties with the outside world. These relationships are so strongly linked with people’s lives that in order to be effective legal protection cannot make any distinction whatsoever.40
b) European jurisprudence has made it very clear that this aspect deals with enumerating the exceptions to a principle —that of freedom— and therefore, in good legal form, cannot be interpreted but in a restrictive manner.
Under the premise that the purpose of the intervention falls within the above assumptions, it should be judged in reference to that which is “necessary” in a democratic society, in which the demands for pluralism, tolerance and broad criteria are absolutely necessary.
As a result, the European Court of Human Rights verifies “the pressing social need”, or even the particularly serious reasons to consider legitimate the interference of public powers in enforcing a general principle, for the purposes of Article 8. According to said principle, “interference with a right the Convention substantiates must be proportionate to the legal aim pursued.”41
In the Jersild v. Denmark Case (Series A, No. 298), ruled on by the European Court of Human Rights on September 23, 1994, the Court reiterated that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.
However, the Court does point out that said freedom of expression “...must not overstep the bounds set, inter alia, in the interest of the protection of the reputation or rights of others.”
Further on, the Court holds that in considering a journalist’s “duties and responsibilities”, the potential impact of “the medium concerned” is an important factor in itself and that it is commonly acknowledged that the “audio visual media” have often a much more immediate and powerful effect than the print media.
In the light of this case and in general, the Court deemed itself capable of determining whether the reasons adduced by the national authorities to justify “the program” in question are relevant and sufficient, and whether the means employed were proportionate to the legitimate aim allegedly pursued.
In its judgment of September 23, 1994, the European Court held that the reasons adduced in support of Mr. Jersild’s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was “...«necessary in a democratic society» in particular the means employed were disproportionate to the aim of protecting «the reputation or rights of others.»”42
VI. INTERNATIONAL TREATIES AND THE RIGHT TO INFORMATION
1. While it is true that on a theoretical level more or less valid distinctions can be made on the limits between freedom of expression and the right to information, it is also true that problems of seemingly academic distinction begin to appear on entering the sphere of legal practice, in which its specifications are frequently not very clear.
In general terms and in following the most widespread school of thought, it can be said that “the freedom of expression” that refers to ideas, opinions or thoughts is a freedom that can imply an assertion that is not absolutely true. Even then, international rules and regulations are not breached as long as this same freedom does not sink to defamation, lies or any specific type of insult.
On the contrary, “the right to information” necessarily implies that veracity be an essential foundation. One of the serious problems that arises here is the fact that very sensitive opinions are often emitted, but their substance lacks truth.43
2 There is no doubt that the international precedent on much of what would later be legislated in the framework of the right to information is found first of all in the December 10, 1948, Universal Declaration of Human Rights. In Article 19, it states that everyone has the right to freedom of expression, which includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers.44
Meanwhile, the December 16, 1966, International Covenant on Civil and Political Rights provides that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice (Article 19, paragraph 2).
However, this same International Covenant assumes the responsibility of setting limits to the right of freedom of expression. It holds that the exercise of said right implies “special duties and responsibilities.”
The restrictions to which the right to information could be limited cannot be arbitrary, but should be expressly set by the law:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals (Article 19, Paragraph 3).45
Both Article 13 of the 1969 American Convention on Human Rights (The Covenant of San José, Costa Rica) and Article 10 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms clearly and precisely provide for the right to information.
The American Convention surmises that the right everyone has to freedom of thought and expression also includes “...freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice” (Article 13, paragraph 1).
Further ahead and almost identically to the way it was established in the International Covenant on Civil and Political Rights, the American Convention states that the exercise of freedom of expression “shall not be subject to prior censorship but shall be subject to subsequent imposition of liability…” as established by law to ensure respect for the rights or reputation of others, the protection of national security, public order, public health or morals. (Article 13, Paragraph 2, clauses a and b).46
Likewise, Article 10 of the European Convention for the Protection of Human Rights stipulates that the right everyone has of freedom of expression also includes freedom to receive and impart information or ideas, “...without interference by public authority and regardless of frontiers” (Article 10, paragraph 1).
Just as it is established in other human rights conventions and covenants, the European Convention also stipulates that the exercise of these freedoms carries with it duties and responsibilities that may be subject to such “...formalities, conditions, restrictions or penalties as are prescribed by law”, for such purposes as the protection of the reputation of others, the disclosure of information received in confidence, or for maintaining “the authority and impartiality of the judiciary” (Article 10, 2).47
In view of this, it is of interest to become familiar with the Case of the Sunday Times v. the United Kingdom brought before the European Court of Human Rights.
The origin of this celebrated case lies in the publication of an article in the Sunday Times newspaper against a British pharmaceutical company, accusing it of criminal negligence on distributing a medicine that was later found to be very harmful.
After the pharmaceutical company had filed a formal complaint against said newspaper and the House of Lords had pronounced its ruling against the paper, the Sunday Times lodged a complaint against the United Kingdom with the European Court of Human Rights, mainly claiming a breach of Article 10 of the European Convention, pursuant to the freedom of expression and information.
The European Court of Human Rights held that freedom of expression constitutes one of the essential foundations of a democratic society, and that whilst the “media” must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting information, the public also has a right to receive objective information.
In its judgment of April 26, 1979, the European Court of Human Rights pointed out that in its opinion, the injunction directed against the Report on Thalidomide was not a measure needed to prevent interference from the mass media on legal judgments.
The European Court found the reasons for the restraint imposed on the applicants not to be sufficient under Article 10(2) of the Convention. That restraint proved not to be proportionate to the legitimate pursued; it was not necessary in a democratic society for maintaining the authority of the judiciary.
Finally, the Court, in defense of the freedom of press, authorized the publication of the Report, ruling on a restitution in favor of the Sunday Times since there was a violation of Article 10 of the European Convention on Human Rights.48
In the province of the Americas, the Inter-American Court of Human Rights ruled on a very important case regarding the “Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.”
By note of July 8, 1985, the Government of Costa Rica submitted to the Inter-American Court of Human Rights an advisory opinion request relating to the interpretation of Articles 13 and 29 of the American Convention on Human Rights as they affect the compulsory membership in an association prescribed by internal law for the practice of journalism in said country.49
In this advisory opinion, the Court held that the freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion.
Freedom of expression is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, all those who wish to influence the public.
Consequently, said the Court, it can be said that a society that is not well informed is not a society that is truly free.
Within this context, journalism is the primary and principal manifestation of freedom of expression.
On the other hand, it stated, the Court was well aware of the difficulty inherent in the attempt of defining with precision the concepts of "public order" and "general welfare." It also recognized that both concepts can be used as much to affirm the rights of the individual against the exercise of governmental power as to justify the imposition of limitations on the exercise of those rights in the name of collective interests.50
Further ahead, the Inter-American Court of Human Rights stated that it recognized the overriding need for the establishment of a code that would assure the professional responsibility and ethics of journalists and impose penalties for infringements of such a code.51
VII. THE INTER-AMERICAN HUMAN RIGHTS PROTECTION SYSTEM
1. For didactic purposes, a good number of scholars on the subject agree on using five basic stages to identify the evolution of the Inter-American human rights protection system.
The first stage consists of precedents of the system. Here we find an assortment of international instruments with different legal reaches, such as certain conventions, declarations and judgments of various types. Examples of these include the 1948 American Declaration on the Rights and Duties of Man, along with the 1948 Inter-American Charter of Social Guarantees.
The second stage is made up of the creation of the Inter-American protection system. Here the essential role of the “Inter-American Court of Human Rights”, created by Resolution VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959), stands out.
The third stage begins its evolution as of the entry into force of the American Convention on Human Rights. With this document there is a real conventional institutionalization of the system. This takes place in 1978, with the entry into force of the 1969 American Convention on Human Rights, which establishes the “Commission” and the “Inter-American Court of Human Rights” as supervising bodies.
The fourth stage of this evolution is the consolidation of the system and this takes place in the 1980s. At this time, substantial jurisprudence from the Inter-American Court of Human Rights is generated. Moreover, two ancillary protocols to the American Convention in the Area of Economic, Social and Cultural Rights (1988) and to Abolish the Death Penalty (1990) are adopted.
The fifth stage of this evolution is marked by the process of perfecting Inter-American protection of the American Convention on Human Rights, along with other protection systems worldwide (for example, the two United Nation covenants on human rights). These systems complement each other and there is coordination and co-existence.52
There is no doubt that with the establishment of the Inter-American Court of Human Rights in 1979 and especially with the later ratification and adhesion to the 1969 American Convention on Human Rights (Covenant of San Jose, Costa Rica, in force since 1978) by most of the OAS member States, the Inter-American Commission on Human Rights and the Court have comprised the main bodies responsible for the protection of human rights in the Inter-American system.
In 1960, the OAS Council approved the Statute of the Commission and elected its first seven members. Later, in 1965, the Second Special Inter-American Conference broadened the Commission’s functions and authorities so that it could receive individual claims of alleged violations of human rights. In 1967, with the amendment of the OAS Charter through the Buenos Aires Protocol, the Commission went on to become a principle organ of the OAS. Thus, it gained jurisdiction over all the organization’s member States.53
In other words, as of 1959 and during twenty-five years, the Commission has become the only organ protector of said rights. In the last seventeen years, both organs have shared the role of protecting human rights in the Americas.54
2. If we analyze the general outline of the American Convention or the 1969 Covenant of San José, Costa Rica, it is clear that the Inter-American Commission of Human Rights, composed of seven individually-designated members, has a much broader jurisdiction than that conferred to the Inter-American Court.
The Commission (Chapter VII) has the main function of promoting respect for and defense of human rights. It can make recommendations to the governments of the member States for the adoption of progressive measures in favor of human rights within the framework of their constitutional provisions. It can request the governments of the member States to supply it with information on the measures adopted by them in matters of human rights. It responds to inquiries made by the member States and provides those States with the advisory services they request. It can receive petitions containing denunciations or complaints of violation of this Convention by a State Party from any person or group of persons, or any legally recognized nongovernmental entity, etc.
As to the Court, as Edith Márquez R. points out:
...outside its administrative and budgetary jurisdiction... the exercise of judicial venues, both advisory and litigious, which the Convention entrusted to it, depends on the decisions that States or the Commission should have adopted previously, without enabling the Court to embark on initiatives tending to protect human rights without having been expressly required to do so.55
The Inter-American Court of Human Rights, like the International Court of Justice in The Hague, has an advisory role and a litigious one.
Therefore, the Inter-American Court can issue advisory opinions at the request of OAS member States, of the main organs in the Charter (Chapter VIII), and of the Inter-American Commission on matters basically referring to the interpretation of the Covenant of San Jose, Costa Rica, or other treaties on human rights protections in the American States, as well as provide opinions regarding the compatibility of its domestic laws —at the express request of a member state (Article 64, Paragraph 2)— with international human rights instruments.
The pronouncements and rulings issued by the Inter-American Court in its advisory role lack binding legal force, but as happens with the Court of Justice of The Hague, its opinions have great authority, not only moral, but doctrinal. Generally, these opinions become indispensable and constant sources of reference in jurisprudence.
In its advisory role, it does not try to strictly solve a conflict, but basically carry out an “interpretation” of the right in question.56
Thus, the Court itself has clearly specified:
In advisory matters, the Court is not called on to rule on factual situations in order to validate its existence, but to issue its opinion on the interpretation of a legal norm. It must be remembered, in this connection, that the advisory opinions of the Court and those of other international tribunals, because of their advisory character, lack the same binding force that attaches to decisions in contentious cases.57
3. According to the 1969 Covenant of San Jose, Costa Rica, only member States and the Inter-American Commission have the right to submit a case to the Inter-American Court of Human Rights. It is clear that individuals do not have the right of access to adjudicatory jurisdiction, that is, they lack locus standi.
Like the International Court of The Hague, it can be said that the Inter-American Court has an eminently discretionary jurisdiction, completely different to that of national judicial bodies.
In the domestic sphere, it is enough for one party to serve summons on another before a court of law for the adversary to be obligated to appear and defend himself. If he does not do so, he is judged by default.
However, for international matters, for the Court of San Jose, like the Court of The Hague, to have jurisdiction, the consent of both opposing parties is required. If one does not agree to accept its jurisdiction, the Court must decline to involve itself in the issue presented.
The simple fact that one State is a member of the American Convention on Human Rights —as happens regarding the Statute of the Court of The Hague—, is not sufficient to automatically confer jurisdiction to the Court. It necessarily requires an additional act of submission to its jurisdiction, which can be presented through either consent granted before the conflict arises (compulsory jurisdiction) or through consent granted after the disagreement arises (voluntary jurisdiction).
Chapter VIII, Section 2 of the 1969 Convention is very clear in this matter:
1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.
2. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases…
3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement (Article 62).58
The Inter-American Court of Human Rights’ examination of the controversy begins with the written and oral stages of the proceedings.
The written proceedings include filing a report and a counter-report if the court deems it convenient, through a rebuttal and a rejoinder. (Article 30 Rules of Procedure of the Court).
Once these procedures are completed, the Court issues a duly grounded ruling on the case. Any of the seven judges is entitled to have his dissenting or separate opinion attached to the judgment. If among the judges called upon to hear a case none is a national of any of the States Parties to the case, each of the latter may appoint an ad hoc judge (Article 55 and 66 of the Convention).
The judgment issued by the Court is final and not subject to appeal. The Court only admits a “request for interpretation”, which only proceeds in case of disagreement as to the meaning or scope of the judgment, provided the request is made within ninety days from the date of notification of the judgment.59
Article 28 of the Statute of the Inter-American Court stipulates that the Inter-American Commission on Human Rights appears as a party before the Court in all cases within the adjudicatory jurisdiction of the Court. It should be made clear that there is no alleged “thing done automatically” in sending the cases to Court once the proceedings before the Commission have been concluded, that is, when it has already rendered its report and a friendly settlement has not been reached (Section 4. Procedure, Articles 48, 49, 50 and 51 of the American Convention).
While it is true that there are no regulations —which is to be regretted— for the requirements that must be complied with so that the Commission may submit a case before the Court, certain conditions or requisites, which could be called “minimal conditions” for an affaire to be submitted to the Court, can be arrived at from Inter-American practices.
It can be stated that the first requirement would obviously be for the affected State to have accepted the obligatory jurisdiction of the Court, however that may be, either before the controversy arises after it depending on the particular case. Secondly, it appears to be indispensable that there be a violation of a human right guaranteed by the convention by the State against which the case is brought. That is, if proceedings before the Commission has been exhausted and it was ruled that there was no human rights violation, it would not make any sense.
However, a third condition would be that the criteria for submitting a case to the court seems to have been based on the fact that choosing this alternative would be the most favorable for the protection of the human rights established in the Convention of San José, Costa Rica.60
According to the American Convention on Human Rights, if the Inter-American Court finds that there has been a violation of a “right or freedom protected” by the Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated.
Likewise, if legally warranted, the Court has the power to rule that the breach be remedied. In other words, it can order that a restitio in integrum be made. If this is not possible, it can order the redress of damages, through either a fair compensation or other measures as it deems pertinent (Article 63): “That part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state” (Article 68, paragraph 2).
While it is clear that the jurisdictions of the Commission and of the Court are different, they can be considered complementary. This has been evidenced by Court jurisprudence in sentences such as the one issued on June 26, 1987, in which it held the following:
The broad terms employed by the Convention show that the Court exercises full jurisdiction over all issues relevant to a case. The Court, therefore, is competent to determine whether there has been a violation of the rights and freedoms recognized by the Convention and to adopt appropriate measures. The Court is likewise empowered to interpret the procedural rules that justify its hearing a case and to verify compliance with all procedural norms involved in the "interpretation or application of (the) Convention." In exercising these powers, the Court is not bound by what the Commission may have previously decided; rather, its authority to render judgment is in no way restricted. The Court does not act as a court of review, of appeal or other similar court in its dealings with the Commission. Its power to examine and review all actions and decisions of the Commission derives from its character as sole judicial organ in matters concerning the Convention.61
On the other hand, it must be recalled that while individuals as such do not have access to Court jurisdiction, in processing some cases that have been submitted to the court, the Inter-American Commission has designated the attorneys that represented the interested parties before the Commission as counsel.
This way, as the Executive Secretary of the Inter-American Commission on Human Rights, Edith Márquez, states:
...and through a proper and extensive interpretation of the regulations carried out by both the Commission and the Court, it has been attempted to solve the lack of access of the victims before the judicial body, which undoubtedly is a limitation in the Inter-American human rights protection system and that in Europe… corrective measures, as well as regulations, have been adopted so that the victims can be represented by attorneys of their choice.62
4. In order to be consistent with its speeches on continuous efforts to enhance democratic principles nationally and of its fight for the assertion of human rights internationally, the Mexican government should proceed to recognize the adjudicatory jurisdiction of the Inter-American Court of Human Rights, in order to deal with any case regarding the interpretation and enforcement of the provisions in the 1969 Covenant of San José, Costa Rica.
On December 1, 1988, the Mexican Senate issued the decree approving the Declaration for the Recognition of the Jurisdiction of the Inter-American Court of Human Rights (Federal Official Gazette, 8/Dec/98), thus depositing the instrument of accession at the General Secretariat of the Organization of American States on December 16th of that year.
In its declaration, Mexico recognized as binding ipso facto the adjudicatory jurisdiction of the Inter-American Court of Human Rights on matters relating to the interpretation or application of the 1969 American Convention, with the exception of cases derived from application of Article 33 of the Mexican Constitution.
Acceptance of the Court’s adjudicatory jurisdiction entered into force as of the date of the deposit of the Declaration, and therefore cannot apply retroactively.63
It should be made clear that the recognition of the adjudicatory jurisdiction of the Inter-American Court of Human Rights does not mean in any way that said court can turn into something like a court of appeals that is conferred the power to revoke or annul final sentences from the courts in the Mexican legal system.
a) The quid to know the hierarchy of the norms in the Mexican legal system is found: 1) in the proclamation of Article 133 of the Constitution in referring to “the laws of the Congress of the Union that emanate therefrom,” that is, from the Constitution itself, and 2) in a congruent interpretation with other precepts of the Constitution.
b) In Mexico there is no hierarchy whatsoever between federal and local law because Articles 16, 40, 41, 103, 105 and 124 of the Constitution do not allow it and because our legal system does not recognize the existence of concurrent powers.
c) If the laws that emanate from the Constitution, as mentioned in Article 133 of the Constitution, were federal ones, there would undoubtedly be only the supremacy of federal law over local ones in Mexico and all the constitutional articles mentioned in the previous point would oppose Article 133. This would be absurd because there are no contradictions in a Constitution.
d) In Mexico, the hierarchy of the legal system is as follows: 1) the Constitution, 2) constitutional laws and international treaties, 3) federal laws and local laws.
Apparent contradictions between federal and local law are solved by examining which authority is the competent one, according to the Constitution, to issue said law.
e) International treaties, approved by Mexico and that is in agreement with the Constitution, are internal norms of the Mexican legal system and as such should be asserted by lawyers and applied by judges. If it were not so, valuable norms and instruments for the defense and protection of human rights would not be used. In this specific case, it would be that of the right to information and the right to privacy.
f) In Mexico, nobody denies that ratified international treaties are internal norms. Mexican jurisprudence has always recognized them as such. What has given rise to controversy is their hierarchy in the Mexican legal system. The most recent Supreme Court opinion accepts that international treaties are located hierarchically above federal laws and second to, or below, the Constitution.
This opinion is correct because it interprets Article 133 of the Constitution in agreement with other especially important constitutional provisions, such as those previously mentioned: 16, 40, 41, 103, 105 and 124, even though the jurisprudential opinion only expressly refers to the Article 124.
g) At the moment, there is a constitutional school of thought that gives international human rights treaties a special hierarchy. Several Latin American Constitutions have incorporated the idea expressed in the precepts that acknowledge that the human rights treaties they have ratified have priority over the Constitution itself, or have constitutional hierarchy, and as such can only be modified according to the procedures established by the Constitution for its modification.
Unfortunately, Mexico is far from this constitutional school of thought. Not much is said or written about this issue and it does not constitute, at the moment, a matter on Mexico’s constitutional agenda. However, it will be necessary to insist upon it until it becomes an issue discussed in legal, constitutional and political forums.
h) In the Mexico of our times, one priority consists of the knowledge of the international treaties of which Mexico is a State party, especially of those regarding human rights. In this specific case, we refer to those that have provisions on the right to information and the right to privacy. We reiterate that these precepts are internal norms and should be asserted by attorneys and applied by judges.
i) It is necessary to reach a compromise between the public interest in information and the private interest in privacy. The right to information ceases to exist when people’s sphere of privacy is violated.
j) The provisions established in the international treaties ratified by Mexico regarding the right to information and the right to privacy broaden the framework of protection provided for in the Mexican legal system.
k) It is likewise important to become familiar with the treaties and up to date with the interpretation that the competent bodies make, according to the international instruments themselves, since said interpretation can and should be asserted before national courts.
l) It is also interesting and educating to find out about European Court of Human Rights jurisprudence due to its depth and precision, especially because it influences Inter-American Court of Human Rights judgments.
m) All the international treaties cited in this essay are for the purpose of protecting freedom of expression and the right to information, but none considers them unlimited or absolute rights. To the contrary, the treaties themselves stipulate some restrictions that cannot be arbitrary, but that need to be expressly established by law to ensure the respect for the rights of others, as well as to protect national security and public order.
n) The Inter-American human rights protection system works better every day. Jurisprudence from both the Commission and the Inter-American Human Rights Court has had notable growth, as well as audacity and strength of decision. As to the topics in this essay, we find decisions from both bodies that reinforce and clearly define the protection of these rights.
o) A very important step in the defense and protection of human rights in Mexico is that as of December 1998, Mexico has recognized the adjudicatory jurisdiction of the Inter-American Court of Human Rights. It is expected that cases of violations of these rights committed on Mexican territory will be made known and that in this case they will not find an echo for the administration of justice.
* Full-time researchers at the UNAM Legal Research Institute.
1 Carpizo, Jorge, “Derecho a la información, derechos humanos y marco jurídico,” in various authors, Liber Amicorum, Héctor Fix-Zamudio, San José, Costa Rica, Inter-American Court of Human Rights and European Union, 1998, p. 504. Gómez-Robledo, Alonso, “Protección de la privacía frente al Estado”, Cuadernos del Núcleo de Estudios Interdisciplinarios en Salud y Derechos Humanos. Diagnóstico genético y derechos humanos, Mexico, UNAM, 1998, pp. 92 and 93.
2 Carpizo, Jorge, “El poder: su naturaleza, su tipología y los medios de comunicación masiva,” Boletín Mexicano de Derecho Comparado, Mexico, new series, year XXXII, No. 95, 1999, p. 351.
3 Carpizo, Jorge, art. cit., various authors, op. cit., note 1, pp. 510 and 511.
4 Carpizo, Jorge, art. cit., various authors, op. cit., note 1, pp. 512-515; as well as in Carpizo, Jorge, “Constitución e información”, in Valadés, Diego and Carbonell, Miguel (coords.), Constitucionalismo iberoamericano del siglo XXI, Mexico, UNAM, Instituto de Investigaciones Jurídicas, H. Chamber of Deputies of the Mexican Congress, 57th Legislature, 2000, pp. 26 and 27.
5 In 1977, a final statement, which says: “Freedom of information will be guaranteed by the State,” was added to Article 6 of the Constitution, which guarantees freedom of thought and expression. This is the sentence we wish to highlight in this essay.
6 Carpizo, Jorge, art. cit., in Valadés, Diego and Carbonell, Miguel, op. cit., note 4, pp. 27 and 28.
7 Carpizo, Jorge, Estudios constitucionales, Mexico, UNAM, Instituto de Investigaciones Jurídicas, Porrúa, 1998, pp. 16-19.
8 Cueva, Mario de la, Teoría de la Constitución, Mexico, Porrúa, 1982, pp. 113-115.
9 Fix-Zamudio, Héctor and Valencia Carmona, Salvador, Derecho constitucional mexicano y comparado, Mexico, Porrúa, 1999, pp. 70-71. However, they seem to contradict this train of thought in the exposition they themselves make on p. 73.
10 Concurrent powers are those that are not exclusively attributed to the Federation, nor prohibited to federal states. When the Federation does not act, the states can carry them out. However, when the Federation acts, it partially repeals local legislation. The argument used to justify concurrent powers consists of contending that states cannot be waiting for federal intervention in order to satisfy their necessities.
11 Fraga, Gabino, Derecho administrativo, Mexico, Porrúa, 1962, p. 38.
12 García Máynez, Eduardo, Introducción al estudio del derecho, Mexico, Porrúa, 1961, pp. 87 and 88.
13 Arteaga Nava, Elisur, Derecho constitucional, Mexico, Harla, 1998, p. 28.
14 See Traités multilatéraux pour lesquels le Secrétaire Général exerce les functions de dépositaire, st/LEG/SERD.D/11, New York, 1980, pp. 555-562. It is important to recall that everything regarding international agreements between States and international organizations would be later coded by the Vienna Convention on the Law of Treaties between States and International Organizations, adopted on March 20, 1986, by participating States in the United Nations Conference convened by the General Assembly with resolution 39/86 on December 13, 1984. See the text of the 1986 Convention in Documents Juridiques Internationalaux, Paris, Themis, Vol. 5, No. 2, 1986, pp. 314-346.
15 In a report given by Jorge Carpizo in the Jornadas de Homenaje a la Constitución Mexicana de 1917 [Days in Honor of the 1917 Mexican Constitution] on its 60th Anniversary, he holds that he agrees with Tena Ramírez in that the type of “executive orders” should not be used in Mexico because the Mexican Constitution mentions conventions and treaties, while that of the United States only mentions treaties. Furthermore, the United States Constitution stipulates a two-thirds majority of the senators present while the Mexican Constitution does not indicate a specific quorum. This means that in order to ratify a treaty, only a majority of the senators present is needed. This practice in Mexico denotes a lack of respect to the Political Constitution and to the Senate itself. See Carpizo, Jorge, “El Poder Ejecutivo y las relaciones exteriores de México”, in La Constitución y las relaciones exteriores de México, Mexico, Instituto Matías Romero, 1977, pp. 60-63. The Mexican Law on Entering into Treaties, published in the Official Gazette of the Federation on January 2, 1992, analyzes the 1969 Vienna Convention’s definition of “Treaty”, but in an awkward way that tries to cloak the problem of executive orders by calling them “inter-institutional agreements”. Thus, it is possible for any decentralized federal agency or body of the federal, state or municipal public administration to enter into these agreements (sic); Article 2, II of the 1992 Mexican Law on Entering into Treaties. Cfr. Gómez-Robledo Verduzco, Alonso, “El régimen jurídico de los tratados en México”, in various authors, Estudios en homenaje a Jorge Carpizo: Problemas actuales del derecho constitucional, Mexico, UNAM, 1994, pp. 157-168.
16 Carbonell, Miguel, Constitución, reforma constitucional y fuentes del derecho en México, Mexico, UNAM, Porrúa, 1999, pp. 191 and 192.
17 See Gómez-Robledo, Alonso, “Comentario al artículo 133”, Constitución Política de los Estados Unidos Mexicanos. Annotated edition, Mexico, Poder Judicial de la Federación [Federal Judiciary Branch], Consejo de la Judicatura Federal [Federal Judiciary Council], UNAM, 1997, Vol. II, pp. 1389-1392.
18 Weekly Federal Court Report, Mexico, 7th Epoch, Vols. 151-156, Part 6, p. 196; and Vol. 78, Part 6, p. 111. See Carbonell, Miguel, op. cit., Note 16, p. 193.
19 Weekly Federal Court Report, Mexico, 8th Epoch, Vol. 60, Opinion P. C/92, Registry No. 205,596, 1992, p. 27. “The Court sitting in banc in its private session celebrated on Tuesday, November sixteenth of this year (1992) unanimously with eighteen votes from the ministers…. approved the above opinion under number C/92 and ruled that the voting is suitable for conceiving this jurisprudential opinion.”
20 Cossio D., José Ramón, “La nueva jerarquía de los tratados internacionales”, Este País, Mexico, No. 107, February 2000, pp. 34-38.
21 Análisis del Proyecto de Constitución. Del Golpe de Estado a la nueva Constitución, Lima, Comisión Andina de Juristas [Committee of Andean Legal Scholars], 1993, pp. 220 and 221.
22 Fix-Zamudio, Héctor and Valencia Carmona, Salvador, op. cit., note 9, p. 487.
23For the Latin American Constitutions that have been cited, the editions used were those jointly made by the Fondo de Cultura Económica and the UNAM in 1994. Furthermore, García Belaúnde, Domingo and Gutiérrez Camacho, Walter, Las Constituciones del Perú, Lima, Official Edition from the Ministry of Justice, 1993, and García Belaúnde, Domingo and Fernández Segado, Francisco, La Constitución peruana de 1993, Lima, Editorial Jurídica Grijley, 1994, were also consulted.
24 Häberle, Peter, “El Estado constitucional europeo”, Cuestiones Constitucionales. Revista Mexicana de Derecho Constitucional, Mexico, No. 2, January-June 2000, p. 93.
25 Carpizo, Jorge, art. cit., in Valadés, Diego and Carbonell, Miguel, op. cit., note 4, pp. 10 and 27.
26 See Pinto, Roger, La liberté d’opinion et d’information: contrôle juridictionnel et contrôle administratif, Paris, Editions Dômat Montchrestien, 1995, pp. 96-163 (especially Chapter II); and Carpizo, Jorge, art. cit., in various authors, op. cit., note 1.
27 See Kayser, P., Le sécret de la vie privée e la jurisprudence civile, Paris, Mélanges René Savatier, Edit. Dalloz, 1965, pp. 405-422; Stoufflet, “Le droit de la personne sur son image”, Jurisclasseur Périodique, Vol. I, 1374, No. 13, 1957.
28 See La Conquête des Droits de l’Homme. Textes Fondamentaux, Paris, Le Cherche-Mii Editeur, 1988, pp. 139-147. Cfr. Sohn B., Louis, “La Declaración Universal de Derechos Humanos”, Revista de la Comisión Internacional de Juristas, Vol. III, No. 2, December 1967, p. 28. Madiot, Yves, “L’influence de la Déclaration des Droits de l’Homme et du Citoyen de 1789 sur le droit international des droits de l’Homme”, Révue Québecoise de Droit International, Quebec, Vol. 6, No. 1, 1989-1990, pp. 1-11.
29 See Inter-American Conferences: First and Second Supplement, 1945-1954, Washington, D. C., Pan-American Union, 1956.
30 See Fernández del Castillo, Germán, “La Declaración Americana de Derechos y Deberes del Hombre”, México en la IX Conferencia Internacional Americana (in Bogota, Colombia), Mexico, Secretaría de Relaciones Exteriores [Foreign Relations Ministry], March 30–May 2, 1948, pp. 133-167.
31 The American Convention on Human Rights “Covenant of San José, Costa Rica”) entered into effect on July 18, 1978, according to Article 74.2 of the Convention, and with the OAS Secretary General as the depositary. The text of the original instrument and ratification can be seen in Treaty Series, Washington, D. C., OAS Secretary General, No. 36 (UN Registry: 27-VIII-1979, No. 17955). Mexico’s instrument of accession was received at the General Secretariat of the OAS on March 24, 1981, with two interpretative declarations and one reservation. Notification of the reservation submitted regarding Article 130 of the Mexican Constitution was given in conformity with the provisions of the Vienna Convention on the Law of Treaties, signed on May 23, 1969 and in force as of January 27, 1980. The twelve-month period from the notification of said reservation expired on April 2, 1982, without any objection being raised to the reservation by any other State members (Article 20, paragraph 5, Vienna Convention, 1969). On the other hand, the so called “Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights” signed in San Salvador, El Salvador, on November 17, 1988, at the eighteenth regular session of the General Assembly, was ratified by the Mexican government on April 16, 1996, depositing the corresponding instrument with the OAS Secretary General. See Treaty Series, op. cit., Note 31. Cfr. Fix-Zamudio, He Editorial Jurídica Grijley, Héctor, “El sistema americano de protección de los derechos humanos” and “Notas sobre el sistema interamericano de derechos humanos”, Protección jurídica de los derechos humanos, 2nd Edition, Enhanced, Mexico, CNDH, 1999, pp. 271-308 and 455-532, respectively.
32 See “Exposición del Poder Ejecutivo de la Unión sobre los pactos y convenciones internacionales que promueven la protección de los derechos humanos”, Archivo histórico diplomático mexicano: Convenciones sobre derechos humanos, Mexico, SRE, 1981, pp. 9-24.
33 See Vasak, Karel, Les Dimensions Internationales des Droits de l’Homme, Paris, UNESCO, 1978.
34 That which is known in international law as the “International Charter of Human Rights” is made up of the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights, and the Optional Protocol of the International Covenant on Civil and Political Rights. See the texts pertaining to the above-mentioned instruments in Human Rights: A Compilation of International Instruments, Geneva, United Nations, 1994, ST/HR/1/Rev. 5 (Vol. I, Part 1), pp. 1-49.
35 See Case No. 9178 (Costa Rica), Resolution No. 17/84, October 3, 1984, in the Inter-American Human Rights Commission Annual Report 1984-1985, Washington, D.C., Organization of American States, 1985. The creation of the Inter-American Human Rights Commission dates from 1959, when the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Resolution VIII) was carried out. While it was true that the Statute limited the jurisdiction of the Commission on the Promotion and Protection of Human Rights, over the years and with a bold yet consistent practice, the Commission itself would go on, case by case, widening that “restricted jurisdiction” assigned to it at its creation. See Gros Espiell, Hector, “Le système interamericain comme regime régional de protection international des droits de l’homme”, RCADI, Vol. II, 1975. The current Statute of the Inter-American Commission was approved under Resolution No. 447, adopted by the OAS General Assembly in the ninth period of sessions held at La Paz, Bolivia, in October 1979. See Basic Documents Pertaining to Human Rights in the Inter-American System, San José, Costa Rica, Secretariat of the Inter-American Court of Human Rights, 1997, pp. 7-84.
36 The Inter-American Court of Human Rights, Enforceability of the Right to Reply or Correction (Articles 14(1), 1(1) and 2 of the American Convention on Human Rights), Advisory Opinion OC-7-86, August 29, 1986, Series A: No. 7, San Jose, Costa Rica, 1986, pp. 12 and 13, paragraphs 23 and 24. The court recalls the norm inserted in Article 32(2), which states that “The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society” (paragraph 23). The concept of general welfare had been previously analyzed by the Court, surmising that within the framework of the American Convention it is possible to understand general welfare “...as referring to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values… and preserves and promotes the full realization of the rights of the individual...”. See Advisory Opinion OC-5/85, November 18, 1985, International Legal Materials, Washington, D. C., American Society of International Law, Vol. XXV, No. 1, 1986, pp. 123-145, paragraph 66.
37 See Inter-American Court of Human Rights, op. cit., note 36, p. 19, paragraph 35. The court was made up of Judges T. Buergenthal, R. Nieto, R. Piza, P. Nikken, H. Fix-Zamudio, H. Gros-Espiell and J. Alcerro.
38 See European Convention of Human Rights and Fundamental Freedoms, Rome, November 4, 1950. The rights and freedoms initially consecrated in the Convention were profusely extended through a series of additional protocols. Yearbook of the European Convention on Human Rights, Recueil des Textes, Dordrecht/Boston/London, A. Martinus Nijhoff Publishers, Vol. 33, 1994, pp. 1-30.
39 French text of Article 8, paragraph 1: “Toute personne a droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance”, Annuaire de la Convention Européenne des Droits de l’Homme. Recueil des Textes, Dordrecht/Boston/London, A. Martinus Nijhoff Publishers, Vol. 33, 1994, p. 1.
40 In this sense, see Niemietz v. Germany: European Court of Human Rights, 16-12-1992, No. 30, p. 729.
41 Cfr. European Court of Human Rights: (1) Golder, 21-II-1975, No. 44; (2) Handyside, 7-XII-1976, No. 48; (3) Dudgeon, 22-X-1981, No. 52; (4) Young, James et Webster, 13-VIII-1981, No. 63; Series A: Arrêts et decisions de la Cour, Köls, Germany, Karl Heymanns Verlag. On the hermeneutics of Article 8 of the European Convention, see Fawcett, J. E. S., The Application of the European Convention on Human Rights, Oxford, Clarendon Press, 1987, pp. 210-235.
42 European Court of Human Rights: Jersild v. Cenmark, September 23, 1994, Series A (No. 298), Arrêts et decisions de la Cour, Köls, Germany, Karl Heymanns Verlag. As to the official text of Protocol 11, which set up a single permanent Court to thus replace the current control mechanisms, i.e. the Commission and the European Court of Human Rights, adopted on May 11, 1994, in Strasbourg, can be accessed in: Annuaire…, op. cit. Note 39, pp. 273-283.
43 See Sánchez González, Santiago, La libertad de expresión, Madrid, Marcial Pons, 1992, pp. 105-127. Judge José Augusto Vega Ruiz points out that oftentimes the issue lies in knowing whether it is about a “valuable judgment” or simply pure and simple “information of a fact”. “In the United States, it has been attempted to get around this stumbling block with the principle of differentiation between pure opinions and mixed opinions. The first are based on true and notorious facts known by all. The second do not establish the facts on which they are based, but clearly imply and suggest offensive acts that are kept unseen.” See Vega Ruiz, José Augusto de, Libertad de expresión, información veraz, juicios paralelos, medios de comunicación, Madrid, Universitas, 1998, p. 46. Cfr. Carpizo, Jorge, art. cit., in various authors, op. cit., note 1, pp. 503-519.
44 See La Conquête..., op. cit., note 28, pp. 139-147. In Article IV of the 1948 American Declaration of the Rights and Duties of Man states: “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsovever.” See Basic Documents..., op. cit., note 35, pp. 19-24.
45 See Human Rights..., op. cit., note 34, pp. 20-40.
46 See the text of the 1969 Convention, in force since July 18, 1978, in Treaty Series, op. cit., note 31. According to this same provision, not only propaganda for war, but also any advocacy of national, racial or religious hatred that constitute incitements to lawless violence is prohibited (Article 13, paragraph 5). In referring to this right, Professor Scott Davidson has said: “Of all the rights protected by the American Declaration and the American Convention, it is perhaps the right to freedom of through and expression which has received the most detailed attention by the Commission and the Court.” See Scott, Davidson, The Inter-American Human Rights System, Dartmouth, Great Britain, 1997, p. 310.
47 See the official text of the 1950 European Convention for the Protection of Human Rights and its ancillary protocols in Convention..., op. cit., note 38, pp. 1-30. For an in-depth comment on this provision, see Fawcett, J. E. S., op. cit., note 41, pp. 250-273.
48 “Sunday Times v. United Kingdom!, European Court of Human Rights. Judgment of 26 April 1979, Series A, Vol. 30. “...The Court concludes that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention...”, ibidem, paragraph 67.
49 See Inter-American Court of Human Rights: Advisory Opinion OC 5/85 of November 13, 1985. “Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.” Articles 13 and 29 of the American Convention on Human Rights, International Legal Materials, Vol. XXV, No. 1, January 1986, pp. 123-145.
50 Ibidem, paragraphs 70, 71 and 67 of the Advisory Opinion.
51 Ibidem, paragraph 80 of the Advisory Opinion. For this Case, the Court was integrated by Judges Thomas Buergenthal, Rafael Nieto Navia, Huntley Eugène Munroe, Máximo Cisneros, Rodolfo Piza Escalante and Pedro Nikken. Judges R. Nieto and R. Piza attached a separate advisory opinion, while Judges M. Cisneros and P. Nikken each issued separate declarations, idem.
52 See the studies carried out by Brazilian Professor Antônio Augusto Cançado Trindade: “El sistema internacional de protección de los derechos humanos (1948-1994): Evolucion, estado actual y perspectivas”, in Derecho internacional y derechos humanos, San José, Costa Rica, Editores Bardonnet, D. and Cançado, 1996, pp. 47-97; “La question de la protection international des droits economiques, sociaux et culturels: evolution et tendences actuelles”, Révue Genérale de Droit Internaitonal Publci, Paris, No. 94, 1990, pp. 913-946; “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights”, Recueil des Cours de l’Académie de Droit International, The Hague, No. 202, 1987, pp. 13-435; Gros Espiell, Hector, Derechos humanos y vida internacional, Mexico, Instituto de Investigaciones Jurídicas, Comisión Nacional de Derechos Humanos, 1995, pp. 9-69 and 217-259; and Grossman, Claudio, “Reflexiones sobre el sistema interamericano de protección y promoción de los derechos humanos”, in various authors, La Corte y el sistema interamericano de derechos humanos, San José, Costa Rica, Ed. Rafael Nieto Navia, 1994, pp. 245-263.
53 See Rodríguez Márquez, Edith, “Las relaciones entre la comisión y la Corte Interamericana de Derechos Humanos”, in various authors, La Corte..., op. cit., note 52, pp. 297-320.
54 See Inter-American Treaties and Conventions; Signatures, Ratification and Deposits, Treaty Series, Washington, D. C., OAS Secretary General, No. 9, 1993. As to the American Convention on Human Rights, “the Covenant of San Jose, Costa Rica”, Mexico deposited its instrument of accession at the General Secretariat of the OAS on March 24, 1981, with two interpretative declarations and one reservation. According to the 1969 Vienna Convention on the Law of Treaties (in force since 1980) notification of the reservation was given. The twelve-month period from the notification of said reservation expired on 2 April 1982, without any objection being raised to the reservation. The reservation Mexico made reads as follows: “The Government of Mexico makes express reservation to Article 23, paragraph 2, since the Mexican Constitution provides, in Article 130, that ministers of denominations shall not have an active or passive vote, nor the right to associate for political purposes.” See section B. 32, p. 4, Letter K. This reservation needs to be amended because on January 28, 1992, the decree that modifies Articles 3, 5, 24, 27 and 130 of the Constitution on religious matters was published in the Federal Official Gazette. Thus, while church ministers cannot be voted for in elections, they have the right to vote. They can only be voted for in elections if they have left the ministry five years before. See Soberanes Fernández, José Luis, “Comentario al artículo 130”, Constitution of the United Mexican States, 7th ed., Mexico, UNAM, Instituto de Investigaciones Jurídicas, Porrúa, 1995, Vol. II, pp. 1325-1335.
55 Márquez Rodríguez, Edit, art. cit., in various authors, op. cit., note 52, p. 302. It should be recalled that the Senate in Mexico approved the 1969 American Convention on Human Rights on December 18, 1980 (Federal Official Gazette on January 9, 1981), along with six other covenants regarding human rights protection. These are: 1. the 1966 International Covenant on Economic, Social and Cultural Rights; 2. the 1966 International Covenant on Civil and Political Rights; 3. the 1952 Convention on the Political Rights of Women; 4. the 1979 Convention on the Elimination of All Forms of Discrimination Against Women; 5. the 1954 Convention on Territorial Asylum; and 6. the 1948 Inter-American Convention on the Granting of Political Rights of Women. It is important to note that the following was affirmed in the Statement of the Executive Branch of the Nation on International Covenants and Convention that Promote Human Rights Protection regarding the jurisdiction of the Court: “On the other hand, it would not be warranted for the Mexican government to make, and least of all now, the declaration provided for in Article 62 of the Convention, recognizing as binding ipso facto the adjudicatory jurisdiction of the Inter-American Court of Human Rights on matters relating to the interpretation or application of this Convention... Acceptance of the adjudicatory jurisdiction of the Inter-American Court would be out of place at the moment, as long as national legislation provides for the remedies needed to correct any flaw in the structure for the preservation of individual and social freedoms in the country.” See art. cit., op. cit., note 32, pp. 22 and 23.
56 See Fix-Zamudio, Héctor, op. cit., note 31, pp. 167-186; Fix-Zamudio, Héctor, “Lineamientos procesales de los procedimientos ante la Corte Interamericana de Derechos Humanos”, in various authors, La corte..., op. cit., note 52, pp. 147-189.
57 See Inter-American Court of Human Rights, "Other Treaties" Subject to the Consultative Jurisdiction of the Court (Article 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82, September 24, 1982, Series A, No. 1.
58 It seems that until now, no State has submitted a controversy before the Court, except for the Viviane Gallardo case, in which Costa Rica requested a fact-finding investigation, but the Court declared itself lacking competent jurisdiction. However, until 1996, at least eleven cases have been submitted to the Court, on being filed by the Inter-American Commission. See Márquez R., Edith, art. cit., in various authors, op. cit., note 53, pp. 306 and 307.
59 It should not come as a surprise that many of the provisions found in the IACHR are already found mutatis mutandis in the Charter of the International Court of Justice. Thus, for example, this charter also provides for an ad hoc judge (Article 31, paragraphs 2 and 3). The procedure also consists of two parts: written and oral. The oral proceeding consists of a hearing by the Court to witnesses, experts, agents, counsel and advocates (Article 43, paragraphs 1 to 5). The sentences likewise include an analysis of the facts, a summary of both parties’ arguments, a statement of intent and legal argument, and the conclusions, which are in effect a provision of law. The judges can annex their dissenting opinions when the disagreement refers to the provision or can annex their separate opinions when their disagreement refers to the reasoning of the Court, but coincide with its conclusions (Article 57, Statute of the International Court of Justice). The judgment is also final and without appeal. In the event of dispute as to the scope of the sentence, “the remedy of interpretation”, is accepted (Article 60 of the Statute), etc. Inter-American Court judges are elected for a six-year term, and may be re-elected only once, while the judges of the Court of The Hague are elected for nine years and may be re-elected (Articles 54 of the American Convention and 13 of the Statute of the International Court).
60 In this regards, see the advisory opinion on “Certain Attributes of the Inter-American Commission on Human Rights”, Inter-American Court of Human Rights, Advisory Opinion No. 13 (1993), paragraph 50. It is important to point out that in the 1969 Specialized Conference on Human Rights, the spokesperson of the 2nd Commission thought the Commission could have a role similar to that of Public Prosecutor before the Court, in that it would be representing not only the general interests of the system set in the Convention, but also the interest of the victims who by definition do not have, as such, direct access to the Court’s jurisdiction. See Reports and Documents, Doc. OEA/SER.K/XVI 1.2, Washington, D. C., 1973. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1953, it is expressly stipulated that the European Court of Human Rights could only be involved in a case after the European Commission (consisting of a number of members equal to that of the High Contracting Parties) “recognizes that its efforts to find a friendly settlement have failed...” Those who may then submit a case to the European Court are: 1. The Commission; 2. One of the parties whose national claims to be a victim; 3. The party that submitted the case to the Commission; and 4. The party against which the claim was filed (Articles 47 and 48 of the European Convention). See “European Convention on Human Rights and Fundamental Freedoms” and protocols 1, 2, 3, 4, 5 and 6, in Thierry, Hubert, Droit et Relations Internationales: traits, resolutions, jurisprudence, Paris, Montchrestien, 1984, pp. 337-369.
61 See Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, Series C, No. 1, paragraph 29.
62 See Márquez Rodríguez, Edith, art. cit., in various authors, op. cit., note 53, p. 315.
63 See Fix-Zamudio, Héctor, Mexico y la Corte Interamericana de Derechos Humanos, 2nd ed., México, CNDH, 1999.