3
expressed in various concepts: the rights of others, by the security of all, and by the
just demands of the general welfare and the advancement of democracy, to use, by
way of example, the language of the American Declaration of the Rights and Duties
of Man (Article XXVII) and echoed in the Pact of San José (Article 32(1)).
8.
From this dialectic, which is a constant in social relations and an ever-present
issue before the courts, comes the limitation or restriction on the enjoyment and
exercise of rights and freedoms. These restrictions “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” (Article 30 of the
American Convention).
The rules for interpreting treaties, with the special
importance they have in the case of human rights, strive for maximum and optimum
respect for and enforcement of rights and freedoms, in keeping with the object and
purpose of the corresponding treaty. Hence, limitations must be understood and
applied by a narrow criterion and by the strictest standards of reasonableness,
opportunity and moderation. This point, too, is explored in international case law and
echoed in the decisions of the Inter-American Court.
9.
Apart from the regime of generic limitations that pertain to various rights and
freedoms, the Convention adds specific limitations in the area of freedom of thought
and expression, as is evident in Article 13, paragraphs 2, 4 and 5. The Court has put
together a careful formula concerning the admissible restrictions in this case, which
can be used as a rule of thumb when assessing the restrictions that domestic legal
systems establish. In Advisory Opinion OC-5/85, on Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights), of November 13, 1985, this Court pointed
that the "necessity and, hence, the legality of restrictions imposed under Article
13(2) on freedom of expression, depend upon a showing that the restrictions are
required by a compelling governmental interest. Hence if there are various options to
achieve this objective, that which least restricts the right protected must be selected.
Given this standard, it is not enough to demonstrate, for example, that a law
performs a useful or desirable purpose; to be compatible with the Convention, the
restrictions must be justified by reference to governmental objectives which, because
of their importance, clearly outweigh the social need for the full enjoyment of the
right Article 13 guarantees. Implicit in this standard, furthermore, is the notion that
the restriction, even if justified by compelling governmental interests, must be so
framed as not to limit the right protected by Article 13 more than is necessary. That
is, the restriction must be proportionate and closely tailored to the accomplishment
of the legitimate governmental objective necessitating it.” (para. 46)
3.
The criminal law reaction
10.
And so, one accepts the possibility and even the necessity of reacting in ways
that keep everyone’s rights and freedoms intact and that therefore punish those who
cross boundaries and in so doing violate the rights and freedoms of others. This is
the bedrock of the system of responsibilities, in its various aspects, with the
corresponding list of sanctions. By selecting the lawful options wisely, a balance is
struck that discourages anarchy and authoritarianism.
11.
Not infrequently the freedom of expression protected under Article 13 of the
American Convention comes in conflict with, or seems to come in conflict with, other
rights, such as the rights to privacy, honor, dignity, and to the presumption of
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