100. In this respect, the
State has provided a number of explanations or justifications for the
Petitioners’ treatment which, in its view, should preclude the
Commission from finding any violations of Articles II and XX of the
American Declaration. In particular, as noted above, the State argues
that the issue raised by the Petitioners relates at base to the
federal structure of the
101. In entering into this stage of its analysis, the Commission acknowledges the degree of deference that must properly be afforded to states in organizing their political institutions so as to give effect to the right to vote and to participate in government. The Commission should only interfere in cases where the State has curtailed the very essence and effectiveness of an individual’s right to participate in his or her government. After considering the information on the record, however, the Commission finds that the restrictions on the Petitioners’ rights under Article XX to participate in their national legislature have been curtailed in such a manner as to deprive the Petitioners of the very essence and effectiveness of that right, without adequate justification being shown by the State for this curtailment.
102. The Commission notes in
this regard that the political structure of the
103. Despite the existence of this significant and direct legislative authority that Congress exercises over the Petitioners and other residents of the District of Columbia, however, the Petitioners have no effective right to vote upon those legislative measures, directly or through freely chosen representatives, and it is not apparent from the record that Congress is responsible to the Petitioners for those measures by some other means. In this manner, Congress exercises expansive authority over the Petitioners, and yet it is in no way effectively accountable to the Petitioners or other citizens residing in the District of Columbia. This, in the Commission’s view, has deprived the Petitioners of the very essence of representative government, namely that title to government rests with the people governed.
104. Both the Petitioners and the State have suggested that the foundation of the denial to the Petitioners of the right to vote for and elect members of Congress lay upon concerns existing at the time the U.S. Constitution was negotiated over 200 years ago that the seat of the federal government may be disproportionately threatened, or the position of a state correspondingly enriched, by placing Congress within a State.
The Commission has recognized and given due consideration to the fact
that these concerns may have justified depriving residents of the
District of elected representation in Congress at the time that the
U.S. Constitution was enacted and indeed may have been indispensable
to the Constitution’s negotiation. However, as with all
protections under the American Declaration, the Commission must
interpret and apply Articles II and XX in the context of current
circumstances and standards.
Not only has the State failed to offer any present-day
justification for the Petitioners’ denial of effective representation
in Congress, but modern developments within the
106. Significantly, the State’s judicial branch has specifically concluded that the historical rationale for the District Clause in the U.S. Constitution would not today require the exclusion of District residents from the Congressional franchise and has accepted that denial of the franchise is not necessary for the effective functioning of the seat of government.  It is also notable in this regard that domestic courts in the United States have found that the exclusion of District residents from the Congressional franchise does not violate the right to equal protection under the U.S. Constitution, not because the restriction on their right to elect Congressional representatives have been found to be justified, but because the limitation is one drawn by the Constitution itself and accordingly cannot be overcome by the one person, one vote principle.  The American Declaration prescribes no similar limits or qualifications upon the guarantee of the rights under Articles II and XX and, as indicated above, establishes standards that apply to all legislative or other enactment by a state, including its constitutional provisions.
Numerous political initiatives have been undertaken in the
108. The Commission also
considers it significant that according to the information available,
no other federal state in the Western Hemisphere denies the residents
of its federal capital the right to vote for representatives in their
national legislature. In
109. Based upon the foregoing analysis, the Commission concludes that the State has failed to justify the denial to the Petitioners of effective representation in their federal government, and consequently that the Petitioners have been denied an effective right to participate in their government, directly or through freely chosen representatives and in general conditions of equality, contrary to Articles XX and II of the American Declaration.
110. It also follows from
the Commission’s analysis that securing the Petitioners’ rights under
Articles II and XX of the Declaration does not necessarily require
that they be afforded the same means or degree of participation as
residents of states in the
V. PROCEEDINGS SUBSEQUENT TO REPORT 115/01
111. On October 15, 2001, the Commission adopted Report 115/01 pursuant to Article 43 of its Rules of Procedure, setting forth its analysis of the record, findings and recommendations in this matter.
112. Report 115/01 was transmitted to the State by note dated October 19, 2001, with a request that the State provide information as to the measures it had taken to comply with the recommendations set forth in the report within a period of two months, in accordance with Article 43(2) of the Commission’s Rules.
113. By communication dated December 18, 2001 and received by the Commission on December 19, 2001, the State delivered a response to the Commission’s request for information, in which it indicated as follows:
petitioners have failed to allege facts that establish a violation of
the right to vote as set forth in Article I of the Declaration. The
decision to establish the District of Columbia as a federal enclave in
which the residents have voting rights that differ from residents of
other areas of the
petition fails to establish a violation of Article XX of the
Declaration. Neither the petition, nor the Commission’s Report
identifies any standard – either in the Declaration or in
international law – that would require participation in government in
any particular manner. The framers of the U.S. Constitution, as well
as its past and present citizenry, have devised a system of government
that affords citizens of the District of Columbia certain
rights with regard to participation in governance, both at the
district and federal level. This is a matter properly within the
discretion of the people of the
the political system challenged by the petition is simply not
appropriate for review, and even less for rejection, by the
Commission. These are sensitive issues better left to domestic
political processes. There is simply no basis for the Commission to
substitute its judgment for the political debate and decision-making
of the federal branches of the government of the
114. With respect to the first two observations raised by the State, the Commission considers that these arguments have already been raised before and examined by the Commission during the admissibility and merits phases of the process and the Commission sees no reason to alter its findings in this connection. With respect to the State’s third observation, although the Commission agrees that the issues raised by the Petitioners may constitute sensitive matters ordinarily addressed by domestic processes, it is in large part because the domestic political and legal procedures have failed to resolve the complaints raised by the Petitioners that the Commission has exercised its reinforcing and complementary jurisdiction to evaluate their complaints in light of the United States’ international human rights obligations.
Based upon the response of the
116. The Commission, based upon the foregoing considerations of fact and law, and in light of the response of the State to Report 115/01, hereby ratifies the following conclusions.
The Commission hereby concludes that the State is responsible for
violations of the Petitioners’ rights under Articles II and XX of the
American Declaration by denying them an effective opportunity to
participate in their federal legislature.
118. In accordance with the analysis and conclusions in the present report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE UNITED STATES:
119. Provide the Petitioners with an effective remedy, which includes adopting the legislative or other measures necessary to guarantee to the Petitioners the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their national legislature.
120. By communication dated October 29, 2003, the Commission transmitted this report, adopted as Report Nº 54/02 pursuant to Article 45(1) of the Commission’s Rules of Procedure, to the State and to the Petitioners in accordance with Rule 45(2) of the Commission’s Rules and requested information within 30 days as to measures adopted by the State to implement the Commission’s recommendations.
121. By communication dated November 29, 2003
and received by the Commission on December 1, 2003, the Petitioners
provided a response to the Commission’s
October 29, 2003 request for
information, in which they indicated that the Government of the
122. The Commission did not receive a response from the State to its request for information within the time period specified in the Commission’s October 29, 2003 note.
123. In light
of the information received from the Petitioners, the Commission in
conformity with Article 45(3) of its Rules of Procedure decides to
ratify the conclusions and reiterate the recommendations in this
Report, to make this Report public, and to include it in its Annual
Report to the General Assembly of the Organization of American States.
The Commission, according to the norms contained in the instruments
which govern its mandate, will continue evaluating the measures
adopted by the
Approved on the 29th day of the month of December, 2003. Clare K. Roberts, First Vice-President; Susan Villarán, Second Vice-President; and Julio Prado Vallejo, Commissioner. President José Zalaquett adopted a dissenting opinion, which was presented on October 24, 2003 and is included immediately after this report.
DISSENTING OPINION OF COMMISSIONER JOSE ZALAQUETT
1. My dissent is based on differences with the explicit position of the majority –or with the conclusions that derive logically from that position – in respect of three types of issues: (i) the assessment of the relevant and substantial facts pertaining to this case, as well as other background materials, of public or general knowledge, which are important to take into account when reasoning by comparison or analogy; (ii) applicable law, in particular Articles II and XX of the American Declaration of the Rights and Duties of Man; (iii) what is this Commission’s role in protecting and promoting human rights in the Hemisphere, and in particular the relationship of its role in the examination of communications or complaints that it receives versus its role in promoting human rights; and how it should apply the principle of progressivity in the protection and promotion of human rights.
2. Before expressing my opinion on these three types of issues, I should begin by stating that I fully share the opinion of the majority in this case, as well as that expressed by the Commission in its report on the Aylwin Azócar et al. case,  both by the majority and by Commissioner Robert Goldman, who wrote a dissenting opinion, in that representative democracy is the essential framework for the protection and promotion of human rights in the inter-American system.
3. It also seems appropriate for me to make clear from the outset that, although I shall cite the dissenting opinion of Commissioner Goldman in Andrés Aylwin Azócar et al., my comments should not be construed as a commentary, either positive or negative, on the decision in that case, which involved a petition against my country of nationality, the Republic of Chile. To be sure, I have well-formed opinions on substantial questions relating to the structure of my country’s political system — questions like those that were at issue in the Andrés Aylwin Azócar et al. case. However, I believe that my views in this regard are better expressed in other venues and forums, as I have done on a number of occasions in the past. By stating this, I do not mean to suggest that the rules prohibiting commissioners from taking part in discussions, deliberations, or decisions regarding matters submitted to the Commission in relation to the State of which they are nationals  should be interpreted so broadly as to prohibit a commissioner from commenting on decisions involving his country that appear in past Commission reports (decisions in which he has not participated) when ruling on communications or petitions relating to other States. Rather, I think, on the one hand, that the facts in the Andrés Aylwin Azócar et al. case are very different from the facts in the present case, and, on the other, that it is important to prevent, insofar as possible, speculative interpretations, in one direction or another, of the present dissenting opinion, whether such speculation is based on the above-mentioned case, on my status as a Chilean, or on the activities that I have carried out in my country in the field of human rights. I cannot, however, fail to make reference to generally applicable principles and standards mentioned by Commissioner Goldman in his dissenting opinion in Andrés Aylwin Azócar et al., since I consider them pertinent in establishing the basis for my position in the present case.
4. Turning to the facts established in the record of the present case, it seems to be generally accepted that the status of the District of Columbia as the seat of government under the jurisdiction of Congress, without being a state of the Union, was originally a product of reasonable–and, in any case, sovereign–political accords, as well as of motivations and considerations based on historical circumstances going back to the founding of the United States of America. It is also clear that, since the establishment of the District of Columbia, constitutional amendments and legislation have allowed its residents to participate in presidential and local elections, as well as to elect two senators and a representative, who are not, however, allowed to vote in committee or in plenary if their vote might be decisive.
5. Despite the changes introduced in the legal status of the District and the political rights of its residents over time, it may be said that in light of the evolution undergone by the United States and its federal government in the course of the country’s history, as well as in light of the connotations which at present are attached to the concept of democratic representation, the reasons that, at the time, could have explained the constraints placed on the District of Columbia within the constitutional and legal structure of the United States have now lost validity. Hence, it may be affirmed from the point of view of political theory or political ethics that the corrective measures that have been introduced, gradually and very slowly, remain insufficient in that the residents of the District continue to be deprived of the right to vote for members of Congress who are members of that body in the full sense. This inequity has been recognized by the Federal Court of the District of Columbia, although it concluded that it lacked the authority to provide a legal remedy. 
6. In other words, if the District of Columbia were founded today, it would not appear reasonable or equitable for the rights of its residents to be subject to the political restrictions that currently affect them. Since the District, as is well known, has a history going back more than 200 years, the reproach that could be addressed to the United States from the point of view of democratic theory or ethics would be that it has not adapted its political system to present-day exigencies as regards the rights of the District’s residents. What this Commission must decide is whether, in this case, that theoretical or moral reproach can also be formulated as a legal reproach, based on the rules of international law invoked by the petitioner, i.e., Articles II and XX of the American Declaration of the Rights and Duties of Man.
Before analyzing the point just mentioned in the preceding paragraph,
an examination of further matters of fact is in order. As
established in this report,
a proposed 1978 amendment to the Constitution of the
8. These considerations, though speculative, are reminders of the well-known fact that the majority, if not all, democratic political systems, reveal asymmetries as a result of complex historical developments in which a range of factors play a role. Added to this is the inclination of the majority of citizens in many countries to preserve their basic institutions, especially longstanding ones, frequently out of fear that some changes, though desirable, may alter certain balances and provoke other, less desirable, changes. We may consider these facts good or bad, but in my judgment they constitute one of the ultimate reasons why States, when assuming international obligations, take care to reserve, for their own sovereign decision-making, fundamental aspects of their internal political structure, notwithstanding the political rights they establish or the obligations they undertake.
The majority opinion has cited the example of other federal States in
Though it seems just and equitable, at least theoretically or morally,
for the residents of the District of Columbia to have the right to
elect full representatives to the federal legislature, the above
factors indicate that any institutional or legal modality that may be
used to achieve this objective, insofar as it would involve reform to
a particular aspect of a complex institutional arrangement, may entail
many other repercussions within the political system of the United
States. This supports the conviction (the legal foundation of
which is set forth below as a part of this dissent) that the matter
before us should remain subject to the internal political process of
The standards of international law that, in principle, are applicable
to this case are Articles II and XX of the Inter-American Declaration
of the Rights and Duties of Man. The majority of the Commission
has ruled that the rights of the petitioners established in these
articles have been violated by the
In his dissenting opinion in Andrés Aylwin Azócar et al.,
Commissioner Goldman has examined a number of the standards and
decisions mentioned in the paragraph above, in connection with his
analysis of Article 23 of the American Convention on Human Rights,
which is applicable to that case because
13. I interpret applicable international law in a fashion very similar to that of Commissioner Goldman. The standards cited above, in paragraph 11 of the present dissenting opinion, protect the right of all persons to participate in the government of their country, directly or through their representatives, and to take part in popular elections, which must be periodic, held at reasonable intervals, genuine, free, and based on secret ballot. None of them – and certainly not Article XX of the American Declaration – establishes a model of how a State is to organize itself internally to embody representative democracy in its institutions, nor how political representation is to be assigned among the country’s different states, provinces, electoral districts, constituencies, or territories. To be sure, Article 3 of Protocol 1 (cited above) provides that elections must be held under conditions that ensure the free expression of the opinion of the people in the choice of the legislature (emphasis added). Nevertheless, as the European Court of Human Rights has established, citing the travaux préparatoires of Protocol 1, the article in question applies only to the election of the “legislature” or, at least, to one of its chambers, if there are two are more, but the word “legislature” does not necessarily refer only to the national parliament. Rather, it must be interpreted in the light of the constitutional structure of the State in question.  It must also be recalled that the parliamentary system is prevalent among the European countries that signed Protocol 1, so that national elections are, in fact, as a rule, elections of the legislature. The respective standards of the inter-American system, on the other hand, do not make reference to legislatures. Lastly, the reference to the legislature contained in Article 3 bears on the conditions necessary to ensure that the expression of the people’s will be free. No predetermined political-electoral system or model is specified, and the ruling cited reinforces this by accepting that said Article would not be incompatible with a situation in which not all legislative chambers (if there are more than one) are elected by the people.
14. Having clarified the issue of the scope of Article 3 to Protocol 1, we may return to the above affirmation, in paragraph 12, that the deference which international human rights bodies owe the States in this respect is not absolute. Commissioner Goldman believes that the Commission has the authority to determine whether the mechanism for political representation adopted by a State is manifestly arbitrary (his own emphasis). The jurisprudence of the European Court of Human Rights has established that the conditions imposed by the State must not be such as to affect the very essence of the right and deprive it of its effectiveness, that they must be imposed in pursuit of a legitimate end, and that the means employed must not be disproportionate.  For its part, the Human Rights Committee has established that although the International Covenant does not impose any particular electoral system, these systems should not "discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.” 
15. I see no reason not to adopt Commissioner Goldman’s formulation, if what it means by “manifestly arbitrary” is a mechanism for political representation that involves arbitrary discrimination in terms of Article II of the American Declaration of the Rights and Duties of Man, interpreted in the light of Articles 1.1 and 23.2 of the American Convention on Human Rights, or a mechanism for political representation that deprives persons or groups of the very essence of political rights or places restrictions on them without a legitimate purpose and in a manner that exceeds all reasonable bounds. It should be pointed out here that Article 21.2 of the American Convention provides that the law may regulate the exercise of the rights and opportunities referred to in its preceding paragraph by reason of residence, among other factors. In other words, a distinction made for reasons of residence is not arbitrary in itself.
The majority opinion, in analyzing the competence of the Commission in
this case, cites the practice of this body and other human rights
tribunals of applying human rights instruments to alleged human rights
violations that may have occurred prior to the ratification of the
instruments, but that are of a continuing nature so that their effects
persist after the instruments enter into force.
One may also recall the principle according to
which the States may not invoke rules of domestic law to justify the
failure to meet their international obligations. Nevertheless,
the crucial point does not lie here but rather in determining whether
the signatory States of the American Declaration of the Rights and
Duties of Man – and in this case, the
17. Having asserted the above, I believe it is also pertinent to express my position on the scope of the principle of progressivity, or pro-rights principle, often invoked as a criterion for guiding international rights bodies in their interpretation of human rights standards. In my view, such standards should be interpreted so as to best protect the rights which they enshrine. In cases of doubt or ambiguity, the interpretation should favor the right rather than the restrictions. Finally, it should take into account changes of all types brought about by historical evolution, seeking to understand the content and scope of rights in a living and dynamic way, a way that preserves their essence and even strengthens them. I am not unaware that the interpreter may go so far in this direction as to usurp the role of the legislator, but this is not the place to rehearse an ancient and hard-fought debate of legal theory. Suffice it to say that in my opinion, this interpretive role is a necessary and even inevitable one, but that, in carrying out an interpretation that updates the law or addresses it from a progressive stance, special care must be taken to proceed on a firm basis, advancing only to the very next logical step.
18. It does not seem to me that a violation of the rights of the petitioners can be established today, either under Article II or Article XX of the American Declaration of the Rights and Duties of Man on the basis of an interpretation like the one indicated in the last lines of the paragraph above. Nevertheless, I do not dismiss the possibility that the evolution of international law and political practice in the Hemisphere may advance to a point where, had it had been reached today, it would have permitted us to come to a different conclusion. Thus, I am of the view that the type of issues dealt with in the present case can and should be dealt with by the Commission and other organs of the Organization of American States through their promotional functions rather than by deciding on a claim or communication. I believe such an approach to be more promising and constructive.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 24th day of the month of October, 2003. (Signed): José Zalaquett.
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 State’s observations dated April 25, 1994, p. 4, citing 10 Annuals of Congress 991, 998-999 (1801) (Remarks of Rep. Dennis).
 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 (stating that an “international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation."). See also I/A Court H.R., Advisory Opinion OC-10/89, supra, para. 37
 Adams v. Clinton, supra, at 27, 56 (stating that “[i]t is also true, as our dissenting colleague argues, that the historical rationale for the District Clause – ensuring that Congress would not have to depend upon another sovereign for its protection – would not by itself require the exclusion of District residents from the congressional franchise”, and indicating that the majority of the Court “do not disagree that defendants have failed to offer a compelling justification for denying District residents the right to vote in Congress. As the dissent argues, denial of the franchise is not necessary for the effective functioning of the seat of government.”).
56-59 (noting that the Equal Protection Clause (Article 1, § 2) of the
U.S. Constitution does not protect the right of all citizens to vote
but only the right of all “qualified” citizens to vote and that the
right to equal protection cannot overcome the line explicitly drawn by
that article. Accordingly, the Court concluded that the doctrine of
one person, one vote under
 Charles Wesley Harris, Congress and the Governance of the Nation’s Capital: The Conflict of Federal and Local Interests (1995), at 255. See also Constitution of the Nation of Argentina (1994), Title II, Sections 125 - 129, Georgetown University, Political Database of the Americas (last modified June 6, 2001) <http: // www. georgetown.edu/LatAmerPolitical/Constitutions/Argentina/argen94.html>.
 Harris, supra, pp. 255. See also Constitution of the Federative Republic of Brazil (1999 as am.), Ch. V, Section I, Article 32 (The Federal District Government), Georgetown University, Political Database of the Americas (last modified June 6, 2001), <http: // www . georgetown.edu/LatAmerPolitical/Constitutions/Brazil/brazil99.html>.
 Harris, supra, pp. 245. See also Constitution of the Republic of Venezuela (1999), Title II, Arts. 16-18, Title IV, Article 186, Georgetown University, Political Database of the Americas (last modified June 6, 2001), <http: // www . georgetown.edu/LatAmerPolitical/Constitutions/Venezuela/venezuela.htm>; Manuel Alcántara, Sistemas políticos de Ameríca Latina (1999), at 505.
 Harris, supra, pp. 245. See also Political Constitution of the United Mexican States (1917 with reforms to 1998), Title II (Legislative Branch), Articles 53, 54, 56, Title V (States of the Federation and the Federal District), Articles 122-129 (last modified June 6, 2001) <http: // www.georgetown.edu/LatAmerPolitical/Constitutions/Mexico/mexico 1998.html.
Report No. 137/99,
case 11.863. Andrés Aylwin Azócar et al.,
 Rules of Procedure of the Inter-American Commission on Human Rights, Article 17.2.
 See above, paragraph 33.
 See above, paragraph 28.
 See above, paragraph 98 of this report.
 See above, paragraph 108 of this report.
The following cases
in particular and the sections mentioned in each of them:
Mathieu-Mohin and Clerfayt v.
General Observation No. 25, adopted at the 57th session (1996) and the
following communications: Grand Chief Donald Marshall et al. v.
 Idem, paragraph 52.
 General Observation no. 25, loc. cit., paragraph 21.
 See above, paragraph 59 of this report.