II.         LEGAL FRAMEWORK FOR THE COMMISSION’S ANALYSIS

 

31.        A complete and accurate analysis of the international human rights commitments of states in the context of terrorist violence requires consideration of conventional and customary rules and principles of both international human rights law and international humanitarian law as well as the framework of international instruments developed specifically for the purpose of preventing, suppressing and eradicating terrorism. This section of the report provides a general overview of each of these regimes of international law, which will in turn provide a basis for the examination of specific rights in the context of terrorism in Part III.           

 

A.         The International Law Against Terrorism

 

32.        As suggested in Part I, the longstanding campaign by states against terrorism has given rise to a body of international law specifically intended to prevent, suppress and eradicate forms of terrorist violence. This area of international regulation is significant for several reasons. It provides examples of efforts by states to protect their populations from the dangers of terrorism. As the Commission has previously emphasized, OAS member states are obliged to guarantee the safety of their populations,[74] which includes taking the measures necessary to investigate, prosecute and punish acts of terrorism.[75] These prescriptions also form part of the international framework within which member states’ human rights obligations must be interpreted and applied.

 

33.        Much of the international law of terrorism has taken the form of multilateral treaties. Major anti-terrorism instruments include the International Convention Against the Taking of Hostages,[76] the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,[77] and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents.[78] These and other treaties on terrorism have developed to contain several provisions that are considered particularly pertinent in combating this form of violence. These provisions include articles that define particular acts of terrorism as criminal offenses for the purposes of the treaties,[79] oblige states parties to make the offenses punishable by appropriate penalties under their domestic law, [80] and require states parties to establish their jurisdiction over offenses and suspected offenders in particular cases and to prosecute or extradite alleged offenders.[81]  Also included in anti-terrorism instruments are provisions that require states parties to cooperate in preventing terrorist offenses and to provide mutual legal assistance in criminal proceedings relating to crimes of terrorism,[82] that require terrorist offenses to be included as extraditable offenses in any extradition treaties between states parties,[83] and that oblige states parties not to regard certain terrorist offenses as political offenses, as offenses connected with a political offense or as offenses inspired by political motives for the purposes of extradition.[84] It is notable in this respect that the provisions of this body of law that require states parties to investigate, prosecute and punish terrorist crimes coincide with the doctrine under international human rights law according to which states are obliged to investigate the acts and punish those responsible whenever there has been a violation of human rights.[85]    

 

34.        In addition to treaties that address particular manifestations of terrorism, the international community has endeavored to develop treaties that address terrorism on a more inclusive basis. These efforts have included negotiations at the United Nations for a comprehensive convention on international terrorism. Responsibility for elaborating this convention has been assigned to the UN General Assembly’s Ad Hoc Committee on Terrorism[86] as well as a Working Group of the General Assembly’s Sixth Committee.[87] According to the most recent draft treaty available,[88] the Convention includes articles similar to those found in the more specific treaties discussed above addressing, for example, the investigation and prosecution or extradition of alleged offenders and mutual legal assistance between states in criminal proceedings involving terrorist crimes. More controversially, the draft convention endeavors to provide a comprehensive definition of terrorism, which has not yet reached agreement among states.[89] The relationship between the comprehensive convention and more specific treaties on terrorism has also been the subject of continuing debate, with some states contending that the treaty should add to the existing conventions while others have asserted that it should be more of an umbrella convention.[90] As of this writing, the draft convention has remained under consideration by the General Assembly’s Ad Hoc Committee and by the Working Group of the Sixth Committee.[91]

 

35.        Similar initiatives to develop comprehensive terrorism conventions have been pursued at the regional level.[92] As emphasized by member states in their responses to the Commission’s invitation to submit information on the present study, these efforts have included the Inter-American Convention Against Terrorism, which was approved and opened for signature by the OAS General Assembly on June 3, 2002 with the stated object and purpose of preventing, punishing and eliminating terrorism.[93] As of this writing, the Convention has been signed by 32 member states but has yet to be ratified by any governments.[94] Many of the provisions of the Inter-American Convention against Terrorism are similar to those under other anti-terrorism treaties. These include, for example, articles that oblige states parties to afford one another mutual legal assistance, including cooperation among law enforcement authorities, with respect to the prevention, investigation and prosecution of the offenses addressed by the treaty.[95] It also renders the political offense exception inapplicable to crimes under the treaty and requires member states to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed such a crime.[96]  Unlike the UN terrorism convention, however, the OAS treaty refrains from providing a comprehensive definition of terrorism, but rather incorporates the crimes prescribed by ten existing international treaties on terrorism.[97] The Convention also contains extensive provisions addressing the prevention, combating and eradication of the financing of terrorism by, for example, requiring states parties to “institute a comprehensive regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities.”[98] It similarly addresses the seizure and confiscation of funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses under the Convention.[99] And as noted previously, pursuant to Article 15 all of the measures under the treaty are subject to the requirement of respect for the rule of law, human rights and fundamental freedoms.[100]

 

36.        Elements of the international law of terrorism described above are discussed in greater detail in the substantive analysis of rights and freedoms contained in this report. It may be noted at this stage, however, that particular regard must be paid to fundamental human rights in the interpretation and application of certain treaty provisions. This includes, for example, implications of the right to personal liberty and security, the right to due process, and the non-refoulement principle for the apprehension, detention and prosecution or extradition of suspected terrorists, as well as the impact of the rights to property and privacy upon the investigation, seizure and confiscation of property allegedly used for terrorist purposes.

 

B.         International Human Rights Law 

 

37.        Within the inter-American system, the human rights obligations of member states of the Organization of American States flow from several sources.

 

38.        By virtue of their ratification of the OAS Charter, all member states are bound by the human rights obligations incorporated in that instrument, which the political[101] and human rights[102] organs of the Organization have recognized are contained in and defined by the American Declaration of the Rights and Duties of Man. Significant aspects of the American Declaration may also be considered to reflect norms of customary international law.[103] On the basis of treaty and custom, therefore, the American Declaration constitutes a source of legal obligation for all OAS member states, including in particular those states that have not ratified the American Convention on Human Rights.[104]  

 

39.        Member states that have ratified the American Convention on Human Rights explicitly undertake pursuant to Articles 1(1) and 2 of that instrument to respect the rights and freedoms recognized in the Convention, and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. They also agree to adopt, in accordance with their constitutional processes and the provisions of the Convention such legislative or other measures as may be necessary to give effect to the rights or freedoms where the exercise of those rights or freedoms is not already ensured by legislative or other provisions.

 

40.        Numerous additional treaties have supplemented and expanded upon the rights contained in these two principal instruments and constitute additional international obligations for member states that have ratified or acceded to their terms. These agreements include the Inter-American Convention to Prevent and Punish Torture,[105] the Inter-American Convention on Forced Disappearance of Persons,[106] the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention of Belém do Pará”),[107] and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (“Protocol of San Salvador”).[108]

 

   41.        The Commission also observes that these instruments must be interpreted and applied in light of several well-established rules and principles governing international legal obligations generally, and human rights obligations in particular, as outlined below.

 

42.        As with all international obligations, a state’s human rights obligations are superior to the requirements of its domestic law and must be performed in good faith. Accordingly, states cannot invoke their contrary domestic law as an excuse for non-compliance with international law.[109] It is also well recognized that the international human rights commitments of states apply at all times, whether in situations of peace or situations of war. This precept flows from the jurisprudence of this Commission[110] and other pertinent international authorities[111] as well as the terms of human rights instruments themselves.[112]  

43.        A state’s human rights obligations have also been recognized as distinct from its other international commitments, because states are, through their international human rights commitments, deemed to submit themselves to a legal order within which they assume various obligations, not in relation to other states parties, but toward all individuals within their jurisdiction. Accordingly, human rights instruments are to be interpreted in light of an object and purpose consistent with their fundamental nature, namely the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and against all other contracting states.[113]

 

44.        Consistent with this approach, a state’s human rights obligations are not dependent upon a person’s nationality or presence within a particular geographic area, but rather extend to all persons subject to that state’s authority and control.[114] This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of an individual’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular state.  This principle is explicitly recognized in the preambles to both the American Declaration and the American Convention[115] and is also recognized in other provisions of these instruments, including those which guarantee all persons the rights under those instruments without any discrimination for reasons of sex, language, creed or any other factor, including national or social origin,[116] and the right to recognition as a person before the law.[117]

 

45.        When interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other human rights and humanitarian law treaties, which together create an interrelated and mutually reinforcing regime of human rights protections. These treaties include, but are not limited to, the Universal Declaration of Human Rights,[118] the International Covenant on Civil and Political Rights,[119] the UN Convention relating to the Status of Refugees[120] and its 1967 Additional Protocol,[121] the UN Convention on the Rights of the Child,[122] the International Convention on the Elimination of all Forms of Racial Discrimination,[123] the Vienna Convention on Consular Relations,[124] the 1949 Geneva Conventions,[125] and the 1977 Additional Protocols thereto.[126] Under this interconnected regime of treaty obligations, one instrument may not be used as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under international or domestic law or practice.[127] A chart stipulating OAS member states that have at present signed,[128] ratified or acceded to each of the foregoing instruments has been included as Annex “II” to this report.

 

46.        Moreover, these treaties, together with the instruments and jurisprudence of other international human rights systems, reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system. As the Inter-American Court has proclaimed, the provisions of the inter-American instruments must be interpreted in the context of developments in the field of international human rights law since those instruments were first composed and with due regard to other relevant rules of international law applicable to member states.[129] These developments may in turn be drawn from the provisions of other prevailing international and regional human rights instruments as informed by relevant principles and customary rules of international law.[130] 

 

47.        It is also pertinent to observe that the human rights framework established by member states of the OAS is one that speaks generally to the obligations and responsibilities of states,[131] which are obliged to refrain from supporting, tolerating or otherwise acquiescing in acts or omissions that fail to conform with their international human rights commitments.[132] Consistent with this premise, the Commission's mandate is to promote the observance and protection of human rights by states and their agents rather than non-state actors.[133]

 

48.        This does not mean, however, that the conduct of non-state actors, including terrorists and terrorist groups, bears no relevance to the evaluation of states’ obligations concerning human rights protections in the Hemisphere. Throughout its history, the Commission has, for example, referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments, and in its reports on the situation of human rights in the various member states of the OAS.[134] The Commission has considered violence of this nature to constitute a relevant component of the environment in which states’ general compliance with human rights standards must be evaluated, and as a justification that may potentially be invoked by states as grounds for temporarily suspending the exercise of certain rights.[135]

 

49.        This in turn raises the issue of derogation from rights protected under the inter-American human rights instruments. As noted above, the fundamental human rights protection of persons apply at all times, in peace, during emergency situations, and in war.[136] Nevertheless, the American Convention, like other international human rights instruments,[137] permits states to take measures derogating from certain treaty protections under narrowly-prescribed situations of emergency. Article 27 of the Convention provides in this regard as follows:

 

Article 27

 

1.             In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. 3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.[138]

 

50.        While the American Declaration does not explicitly contemplate the possibility of restricting or suspending the rights prescribed thereunder, the Commission has considered that the derogation criteria derived from the American Convention on Human Rights embody the Hemisphere’s deliberations on the issue and are properly considered and applied in the context of the Declaration.[139]

 

            51.        According to the doctrine of the inter-American human rights system, the ability of states to take measures derogating from protections under the human rights instruments to which they are bound is strictly governed by several conditions, which are in turn broadly regulated by the generally recognized principles of proportionality, necessity and nondiscrimination:[140]

 

       In order to consider that there is an emergency justifying suspension of rights, there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state;[141]

 

       Any suspension may only be for such time as is strictly required by the exigencies of the situation and may not be proclaimed for indefinite or prolonged periods;[142]

 

       Any suspension may only be effectuated to the extent strictly required by the exigencies of the situation, and thereby precludes the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency;[143]

 

       Any suspension of rights cannot entail discrimination of any kind on such grounds as race, color, sex, language, religion or social origin;[144]

 

       Any suspension must be compatible with all of a member state’s other obligations under international law;[145]

 

       The declaration of a state of a state of emergency  must be notified to the members states of the OAS with sufficient information that others may determine the nature of the emergency, whether the measures are strictly required by the exigencies of the situation, and whether they might be discriminatory or inconsistent with the state’s other obligations under international law.[146]

 

52.        It must also be considered, however, that certain rights can never be the subject of derogation. The implications of this restriction in the context of particular rights will be explored in further detail in Part III of this Report.  It may be observed at this stage, however, that Article 27(2) of the American Convention enumerates all of the rights that may not be the subject of derogation, namely the right to juridical personality, the right to life, the right to humane treatment, the prohibition of slavery and servitude, the principle of non-retroactivity of laws, freedom of conscience and religion, protection of the family, right to a name, rights of the child, right to nationality, and the right to participate in government, as well as the “judicial guarantees essential for the protection of such rights.” In accordance with the latter qualification and the jurisprudence of the Inter-American Court of Human Rights, non-derogable rights within the inter-American system also include the rule of law, the principle of legality, and habeas corpus and amparo remedies, which have been held to constitute judicial guarantees essential for the protection of rights that are non-derogable.[147] Derogable rights, in the other hand, include the right to privacy, the right to freedom of expression, the right of assembly, the right to freedom of association, the right to property, and the right to freedom of movement and residence. They also include derogable aspects of the right to personal liberty and the right to a fair trial, as discussed in further detail below.

 

            53.        In addition to the rules governing derogation from rights, it is apparent that certain rights protected under the inter-American human rights instruments may properly be the subject of certain restrictions that are specifically provided for in the provisions protecting these rights. These restrictions, described generally as those “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others,” are found in the provisions of the American Convention governing the right to freedom of conscience and religion,[148] the right to freedom of thought and expression,[149] and the right freedom of association.[150] While these restriction provisions are distinct in several fundamental respects from derogation clauses,[151] they are, like derogation provisions, governed by specific requirements that are the subject of strict and rigorous review by the supervisory bodies of the inter-American system.[152] They must also be interpreted in light of the general terms of Article 30 of the American Convention, and the corresponding stipulations under Article XXVIII of the American Declaration,[153] according to which the “restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purposes for which such restrictions have been established.”

 

54.        According to inter-American jurisprudence, in determining the legitimacy of restrictions of this nature and, hence, in judging whether such provisions have been violated, it is necessary to decide on a case by case basis whether the specific terms of restrictions or limitations have been respected.[154] These terms provide both procedural and substantive requirements for the proper imposition of restrictions or limitations on particular human rights.[155] The procedural requirements mandate that any action that affects rights must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.[156] 

           

55.        The substantive requirements provide that any restrictions must be necessary for the security of all and in accordance with the just demands of a democratic society, and that their application be proportionate and closely tailored to the legitimate objective necessitating them.[157] The Inter-American Court has suggested in this respect that both public order and general welfare may properly be considered in evaluating limitations upon rights of the above nature. Public order[158] in turn refers to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles, while the concept of general welfare within the framework of the American Convention refers 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.[159] When these concepts are invoked as grounds for limiting human rights, however, they must be subjected to an interpretation that is strictly limited to the just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.[160]

 

56.        As will be expanded upon in the remainder of this report, it is clear that the human rights protections of the inter-American system are pertinent to member states’ initiatives to respond to terrorism in several respects: they constitute international legal obligations that are binding on member states at all times, whether in times or war or other emergency or in times of peace; certain situations of terrorism might conceivably provide conditions under which member states may properly restrict or derogate from certain rights; and certain rights, including the right to life, the right to humane treatment and the fundamental components of the right to due process and a fair trial, may never properly be the subject of restriction or derogation under any circumstances. As specified previously, this latter restriction arises from the explicit terms of the applicable human rights instruments, as well as the mutually reinforcing interrelationship between states’ various domestic and international human rights obligations, according to which restrictions and derogations authorized under one instrument or law cannot be used to legalize or justify otherwise impermissible restrictions on or derogations from human rights under another instrument or law.[161]

 

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[74] Ten Years of Activities, supra note 1, at 339; Asencios Lindo et al. Case, supra note 6, para. 58.

[75] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, Part II, at 513; Neira Alegría Case, supra note 6; American Convention on Human Rights, supra note 61, Articles 1, 2.

[76] 1979 UN Hostages Convention, supra note 33.

[77] 1971 Montreal Convention, supra note 34.

[78] UN Crimes Against Internationally Protected Persons Convention, supra note 35.

[79] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 1 (“(1) Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking hostages (“hostage-taking“) within the meaning of this Convention.”) See similarly 1971 Montreal Convention, supra note 341, Article 1; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(1).

[80] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 2 (“Each State Party shall make the offenses set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offenses.” See similarly 1971 Montreal Convention, supra note 34, Article 3; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 2(2).

[81] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 5  (“(1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over any offenses set forth in Article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. (2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses set forth in Article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this Article. (3) This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law”); Article 6. See similarly 1971 Montreal Convention, supra note 34, Articles 5, 6, 7; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 3, 6, 7.

[82] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 4 (“States Parties shall cooperate in the prevention of the offenses set forth in article 1, particularly by: (a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those offenses, within or outside of their territories, including measures to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in the perpetration of acts of taking of hostages; (b) Exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offenses.”), Article 11. See similarly 1971 Montreal Convention, supra note 34, Articles 11.12; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Articles 4, 10.

[83] See, e.g., 1979 UN Hostages Convention, supra note 33, Article 10 (“(1) The offenses set forth in article 1 shall be deemed to be included as extraditable offenses in any extradition treaty existing between States Parties. States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between them. (2) If a State Party which makes extradition conditional on the existence of a treaty received a request for extradition from another State Party with which it has no extradition treaty, the requested State may at its option consider this Convention as the legal basis for extradition in respect of the offenses set forth in article 1. Extradition shall be subject to the other conditions provided by the law of the requested State. (3) States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offenses set forth in article 1 as extraditable offenses between themselves, subject to the conditions provided by the law of the requested state. (4) The offenses set forth in Article 1 shall be treated, for the purpose of extradition between State Parties, as if they had been committed not only in the place where they occurred but also in the territories of the States required to establish their jurisdiction in accordance with paragraph 1 of Article 5.”) See similarly 1971 Montreal Convention, supra note 34, Article 8; UN Crimes Against Internationally Protected Persons Convention, supra note 35, Article 8.

[84] See, e.g., European Convention on the Suppression of Terrorism, supra note 20, Article 1 (providing: “For the purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives: (a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; (b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.”; Inter-American Terrorism Convention, supra note 8, Article 11.

[85] I/A Court H.R., El Amparo Case, Reparations (Article 63(1) American Convention on Human Rights), Judgment of September 14, 1996, Series C Nº 28, paras. 53-55, 61.

[86] See UN General Assembly Res. 55/158, 12 December 2000.

[87] See, e.g., Reports of the Working Group of the Sixth Committee of the UN General Assembly, UN Doc. A/AC.752/2002.CRP.1; A/AC.252/2002/CRP.1 Add.1.

[88] The most recent accessible version of the draft treaty appears to be included in the Sixth Committee Working Group’s Report of October 29, 2001 containing articles 3 to 17 bis, 20 to 27, and 2 bis (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN  Doc. A/C.6/56/L.9 (29 October 2001) [hereinafter Working Group 2001 Report], as well as in the Working Group’s October 2000 report, containing the preamble and Articles 1 and 18 (Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 55th session, UN Doc. A/C.6/55/L.2 (19 October 2000) [hereinafter Working Group 2000 Report]). A further draft of the convention was included in the Ad Hoc Committee’s report from its January 28 to February 1, 2002 meeting but as of this writing the Ad Hoc Committee’s report was not available. See UN Press Release L/2993 of February 1, 2002 on the Ad Hoc Committee on General Assembly Resolution 51/210, 6th Session, 26th meeting, citing UN Doc. A/AC.252/2002/CRP.1 and Add.1

[89] See, e.g., Report of the Ad Hoc Committee by General Assembly Resolution 51/510 of 17 December 1996, Fifth Session  (12-23 February 2001), UN Doc. A/56/37, paras. 5-22.

[90] See, e.g., Working Group of the Sixth Committee of the General Assembly of the United Nations, Measures to eliminate international terrorism, Sixth Committee, 56th session, UN  Doc. A/C.6/56/L.9, paras. 4-9.

[91] See UN Press Release GA/L/3211, 57th General Assembly, Sixth Committee, 10th meeting (4 October 2002).

[92] See, e.g., European Convention for the Suppression of Terrorism, supra note 20; OAU Convention on the Prevention and Combating of Terrorism, supra note 23.

[93] Inter-American Terrorism Convention, supra note 8, Article 1 and Annex II (providing that “purposes of this Convention are to prevent, punish, and eliminate terrorism.  To that end, the states parties agree to adopt the necessary measures and to strengthen cooperation among them, in accordance with the terms of this Convention”).

[94] OAS, Secretariat for Legal Affairs, Department of Legal Cooperation and Information, Inter-American Convention against Terrorism, Signatories and Ratifications, available at <http:// www. oas. org/juridico/English/sigs/a-66.html> (listing the following signatories to the Inter-American Convention against Terrorism as of October 2, 2002: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Saint Kitts & Nevis, Saint Lucia, St. Vincent & the Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay and Venezuela).

[95] Inter-American Convention Against Terrorism, supra note 8, Articles 8, 9.

[96] Inter-American Convention Against Terrorism, supra note 8, Articles 11, 12.

[97] Inter-American Convention Against Terrorism, supra note 8, Article 2(1) (“For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below: a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970. b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971. c. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973. d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979. e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980. f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988. g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988. h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988. i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997. j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999. (2) Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph.  The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact. (3) When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument”).

[98] Inter-American Convention Against Terrorism, supra note 8, Article 4.

[99] Inter-American Convention Against Terrorism, supra note 8, Article 5.

[100] Inter-American Convention Against Terrorism, supra note 8, Article 15.

[101] See, e.g., OAS General Assembly Res. AG/RES. 314 (VII-0/77) of June 22, 1977; OAS General Assembly Res. AG/RES. 370 (VIII-0/78) of July 1, 1978; AG/RES. 1829, (XXXI-0/01) of June 5, 2001.

[102] See Advisory Opinion OC-10/89, supra note 73, paras. 43–46; Case 9647, Res. 3/87, James Terry Roach and Jay Pinkerton (United States), Annual Report of the IACHR 1986-87, paras. 46-49; Case 12.067, Report Nº 48/01, Michael Edwards et al. (Bahamas), Annual Report of the IACHR 2000, para. 107.

[103] The Commission has considered that it is beyond question that the core rights protected under the American Declaration, including the right to life, the right to liberty and the right to due process and to a fair trial, constitute customary norms of international law. Case 12.379, Report Nº 19/02 (Inadmissibility) (27 February 2002), Alfredo Lares Reyes et al. (United States), Annual Report of the IACHR 2001 para. 46.

[104] Advisory Opinion OC-10/89, supra note 73, paras. 43–46.

[105] Inter-American Convention to Prevent and Punish Torture, signed at Cartagena de Indias, Colombia, on December 9, 1985 at the fifteenth regular session of the General Assembly, [hereinafter Inter-American Torture Convention], in Basic Documents, supra note 63, at 83. For OAS member states that are parties to this instrument, see Annex II.

[106] Inter-American Convention on the Forced Disappearance of Persons, adopted at Belem do Para, on June 9, 1994, at the twenty-fourth regular session of the General Assembly [hereinafter Inter-American Convention on Forced Disappearances], in Basic Documents, supra note 63, at 93. For OAS member states that are parties to this instrument, see Annex II.

[107] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted at Belem do Pará, Brazil on June 9, 1994, at the twenty-fourth regular session of the General Assembly, [hereinafter Inter-American Convention on Violence Against Women], in Basic Documents, supra note 63, at 101. For OAS member states that are parties to this instrument, see Annex II.

[108] Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, signed at San Salvador, El Salvador on November 17, 1988 at the eighteenth regular session of the General Assembly, in Basic Documents, supra note 63, at 65.

[109] See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Article 27 [hereinafter Vienna Convention on the Law of Treaties]. See also I/A. Court H.R., Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Articles 1 and 2 of the American Convention on Human Rights, 9 December 1994, Ser. A Nº 14, para. 35 (recognizing that "[p]ursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions."); Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46, p. 167.

[110] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73; IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999 [hereinafter IACHR Report on Colombia (1999)].

[111] See, e.g., ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 73, para. 25 (confirming that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”).

[112] See, e.g., American Convention on Human Rights, supra note 61, Article 27 (specifically permitting derogations from certain rights “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party”). See similarly International Covenant on Civil and Political Rights, supra note 66, Article 4.

[113] See I/A Court H.R., Advisory Opinion OC-2/82, The Effect of Reservations in the Entry into Force of the American Convention on Human Rights (Articles 74 and 75), September 24, 1982, Ser. A Nº 2, para. 29 (emphasizing that

modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.

[114] See, e.g., Case 9903, Report Nº 51/01, Ferrer-Mazorra et al. (United States), Annual Report of the IACHR 2000, para. 178, citing, inter alia, Advisory Opinion OC-2/82, supra note 113, para. 29; Report No. 38/99, Saldaño Case (Argentina), Annual Report of the IACHR 1998, paras. 15-20; Coard et al. Case, supra note 73, para. 37, citing, inter alia, IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66, doc. 17, 1985 [hereinafter IACHR Report on Chile (1985)], Second Report on the Situation of Human Rights in Suriname, OEA/Ser.L/V/II.66, doc. 21, rev. 1, 1985. See similarly Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv. Hum. Rgts. 83 (1975) at 118; Eur. Court. H.R., Loizidou v. Turkey, Preliminary Objections, 23 March 1995, Series A Nº 310, paras. 59-64 [hereinafter Loizidou, Preliminary Objections].

[115] See American Declaration, supra note 63, Preamble (“The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon the attributes of his human personality”; American Convention on Human Rights, supra note 61, Preamble “Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality…”).

[116] Charter of the Organization of American States [hereinafter OAS Charter], in Basic Documents, supra note 63, at 193, Article 3(l]; American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Articles 1(1), 24.

[117] American Declaration, supra note 63, Article XVII, American Convention on Human Rights, supra note 61, Article 3.

[118] Universal Declaration of Human Rights, supra note 65.

[119] International Covenant on Civil and Political Rights, supra note 66.

[120] UN Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 [hereinafter UN Convention on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[121] Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, [hereinafter UN Protocol on the Status of Refugees]. For OAS member states that are parties to this instrument, see Annex II.

[122] UN Convention on the Rights of the Child, 20 November 1989, GA Res. 44/25, Annex 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989), [hereinafter UN Convention on the Rights of the Child]. For OAS member states that are parties to this instrument,
see Annex II.

[123] International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 195 [hereinafter International Convention on the Elimination of all Forms of Racial Discrimination]. For OAS member states that are parties to this instrument, see Annex II.

[124] Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261 [hereinafter Vienna Convention on Consular Relations]. For OAS member states that are parties to this instrument, see Annex II.

[125] First Geneva Convention, supra note 67; Second Geneva Convention, supra note 67; Third Geneva Convention, supra note 67; Fourth Geneva Convention, supra note 36.

[126] Additional Protocol I, supra note 68; Additional Protocol II, supra note 36.

[127] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b) (“No provision of this Convention shall be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which none of the states is a party.”); International Covenant on Civil and Political Rights, supra note 66, Article 5(2) (“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any state Party to the present Covenant pursuant to law, convention, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”). See generally Buergenthal, To Ensure and Respect, supra note å, at 89-90.

[128] In respect of member states that have signed but not yet ratified certain instruments, Article 18 of the Vienna Convention on the Law of Treaties, supra note 109, provides that a “State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty [. . .].”

[129] I/A Court H.R., Advisory Opinion OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, October 1, 1999, Ser. A
16, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tyrer v. United Kingdom, Judgment of April 25, 1978, Ser. A No. 26, pp. 15-16, para. 31; Marckx v. Belgium, Judgment of June 13, 1979, Ser. A 31, p. 19, para. 41, and Loizidou, Preliminary Objections, supra note 114, para. 71.

[130] Id. See also Case 12.243, Report Nº 52/01, Juan Raul Garza (United States), Annual Report of the IACHR 2000, paras. 88-89; Advisory Opinion OC-1/82, supra note 73; Advisory Opinion OC-10/89, supra note 73, para. 37; I/A Court H.R., Villagran Morales Case, Judgment of November 19, 1999, Series C 63, at paras. 178-198 (referring to the UN Convention on the Rights of the Child, supra note 122). See similarly ICJ, Advisory Opinion  on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), June 21, 1971, I.C.J. Reports 1971, p. 16 at 31 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").

[131] See OAS Charter, supra note 116, Article 106 ("There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters."); American Convention on Human Rights, supra note 61, Article 41 ("The main function of the Commission shall be to promote respect for and defense of human rights."); Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20.

[132] It is well-established that, unlike domestic criminal law, it is not necessary to determine a perpetrators’ culpability or intent in order to establish that a state’s human rights obligations have been violated, nor is it essential to identify individually the agents to whom the acts of violation are attributed. As the Inter-American Court has recognized, “[t]he sole requirement is to demonstrate that the State authorities supported or tolerated infringement of the rights recognized in the Convention. Moreover, the State’s international responsibility is also at issue when it does not take the necessary steps under its domestic law to identify and, where appropriate, punish the authors of such violations.” See I/A Court H.R., Paniagua Morales et al. Case, Judgment of March 8, 1998, Series C, Nº 37, para. 91. See similarly Case 11.654, Report Nº 62/01, Riofrío Massacre (Colombia), Annual Report of the IACHR 2000, paras. 48-52.

[133] See OAS Charter, supra note 116, Article 106; Statute of the Inter-American Commission on Human Rights, supra note 13, Articles 18-20;  IACHR Report on Colombia (1999), supra note 110, Chapter IV, paras. 2, 3.

[134] See, e.g., IACHR Report on Colombia (1999), supra note 110, Chapter 4, para. 6. See similarly IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39 rev., at 247 [hereinafter IACHR Report on Colombia (1993)].

[135] Annual Report of the IACHR 1990-91, supra note 3, Ch. V, at 504 and following.

[136] Abella Case, supra note 73, para. 158. See also Coard et al. Case, supra note 73, paras. 37-42; IACHR Report on Colombia (1999), supra note 110.

[137] See, e.g., International Covenant on Civil and Political Rights, supra note 66, Article 4; Article 15 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, (ETS No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 [hereinafter European Convention on Human Rights], Article 15.

[138] American Convention on Human Rights, supra note 61, Article 27. For an accounting of the travaux préparatoire to Article 27 of the American Convention on Human Rights, see The Inter-American System (T. Buergenthal and R. Norris, eds., 1984), Vol. 1, Booklet 12, at 135, Minutes of the 14th session of the San José Conference, 17 November 1969.

[139] See, e.g., IACHR, Report on the Situation of Human Rights in Paraguay (1987), OEA/Ser.L/V/II.71 Doc. 19 rev. 1 (28 September 1987) at 15-16 [hereinafter IACHR, Report on Paraguay (1987)]; IACHR Report on Argentina (1980), supra note 27, at 26. As early as 1968, the Commission stipulated that rules of derogation equivalent to those under Article 27 of the American Convention on Human Rights applied to member states’ human rights obligations, then as embodied in the OAS Charter and the American Declaration. See Resolution adopted during the 18th session of the IACHR (April 1968), OEA/Ser.L/V/II.19 Doc. 32, reproduced in Inter-Am. Y.B. Hum. Rts. 1968, at 61 (declaring that: “the suspension of constitutional guarantees or 'state of siege' is compatible with the system of representative democratic government only if enacted under the following conditions: a. When officially decreed under the procedure established in the respective constitutions; b. When established in a measure strictly limited to the exigencies of the situation and with application limited to the duration thereof; c. When adopted in case of war or other serious public emergency threatening the life of the nation or the security of the State; d. When it does not entail any discrimination based on reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social conditions; e. When it does nor in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention, the right to due process of law, and the right to freedom of thought, conscience and religion; f. When it does nor presuppose restriction of the rule of law, or the provisions of the constitution, or alteration of the scope of the Powers of the State or of the proper exercise of the police powers.”).

[140] See Neira Alegría Case, supra note 6, paras 74-76; Case 11.010, Report Nº 15/95, Hildegard María Feldman (Colombia), Annual Report of the IACHR 1995, at 57.

[141] Annual Report of the IACHR 1980-81, OEA/Ser.L/V/II.54, doc.9 rev.1, 16 October 1981, p. 115 [hereinafter Annual Report of the IACHR 1980-81]; IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 67. See similarly United Nations Human Rights Committee, General Comment Nº 29, “States of Emergency” (Article 4 ICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001) [hereinafter UNHRC General Comment Nº 29], para. 3.

[142] Annual Report of the IACHR 1980-81, supra note 141, p. 115; IACHR Report on Peru (2000), supra note 27; Asencios Lindo et al. Case, supra note 6, para. 68. See similarly UNHRC General Comment Nº 29, supra note 141, para. 4.

[143] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 69.

[144] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 70. See similarly UNHRC General Comment NC 29, supra note 141, para. 8.

[145] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 71.

[146] IACHR Report on Peru (2000), supra note 27, Ch. II, para. 70; Asencios Lindo et al. Case, supra note 6, para. 72. See also Buergenthal, To Respect and Ensure, supra note 69, at 85.

[147] I/A Court H.R.  Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987, Ser. A 8, paras. 21-27; IACHR Report on Peru (2000), supra note 27,
paras. 71-73.

[148] American Convention on Human Rights, supra note 61, Article 12(2) (“Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, morals, or the rights or freedoms of others”).

[149] American Convention on Human Rights, supra note 61, Article 13(2) (“The exercise of the right provided for in the foregoing paragraph 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; or b. the protection of national security, public order, or public health or morals”).

[150] American Convention on Human Rights, supra note 61, Article 16(2) (“The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others”).

[151] Jaime Oraá identifies three main distinctions in the operation of derogation clauses and limitation clauses: limitation clauses authorize restrictions on grounds in "normal situations” or peacetime, where as derogation clauses operate in exceptional situations; limitation clauses only affect specific rights, whereas derogation clauses could affect all rights under a treaty except those that are considered non-derogable; and the operation of limitation clauses does not require any special declaration by the State, whereas derogation clauses require the notification to the other states parties to the treaty of the proclamation of the emergency, the derogated provisions, and the reasons therefore. Jaime Oraá, Human Rights in States of Emergency in International Law 9-10 (1992). 

[152] See, e.g., I/A Court H.R., Advisory Opinion OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights), November 13, 1985, Ser. A Nº 5 [hereinafter Advisory Opinion OC-5/85], paras. 36, 37; Case 10.506, Report Nº 38/96, X & Y (Argentina), Annual Report of the IACHR 1996, paras. 54-71.

[153] Article XXVIII of the American Declaration provides: “The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.”

[154] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 36.

[155] See American Convention on Human Rights, supra note 61, Article 30 (“The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.”); American Declaration, supra note 63, Article XXVIII. See also Advisory Opinion OC-5/85, supra note 152, para. 37.

[156] X & Y Case, supra note 152, paras. 61, 62.

[157] X & Y Case, supra note 152, para. 71.

[158] As recognized by the drafters of the International Covenant on Civil and Political Rights and by noted publicists, the phrase “public order” is a term of art borrowed from national legal systems that must be interpreted in light of the treatment of the term in those particular systems. This includes interpreting the phrase in conjunction with the French concept of ordre public, which in a broad sense permits limitations on particular human rights where those limitations are necessary to ensure a minimum level of public welfare and social organization. See, e.g., ICCPR, supra note 66, Article 12(3)  (providing that the rights to liberty of movement and freedom to choose residence “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognized in the present Covenant.”). See also M.J. Bossuyt, Guide to the “Travaux Préparatiores” of the International Covenant on Civil and Political Rights 258 (1987), citing Report of the Third Committee of the General Assembly, 14th session (1959), UN Doc. A/4299, § 15; Alexandre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights–The Covenant on Civil and Political Rights 290, 299-301(Louis Henkin, ed., 1981) [hereinafter Kiss, Permissible Limitations on Rights].

[159] See, e.g., Advisory Opinion OC-5/85, supra note 152, paras. 64-66.

[160] See, e.g., Advisory Opinion OC-5/85, supra note 152, para. 67.

[161] See, e.g., American Convention on Human Rights, supra note 61, Article 29(b); International Covenant on Civil and Political Rights, supra note 66, Article 5(2); Additional Protocol I, supra note 68, Article 75(8) (“No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.”). See similarly UNHRC General Comment Nº 29, supra note 141, para. 9. See generally Buergenthal, To Respect and Ensure, supra note 69, at 90.