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defense of democracy.” In this process, Resolution 1080 of 1991, the 1992 Protocol
of Washington, and Resolution 1753 of 2000 in relation to the case of Peru stand
out. This process has gradually consolidated the notion that there is no opposition
between the principle of non-intervention and the defense of democracy and human
rights, among other reasons because the commitments to defend human rights and
democracy are made by countries in the free exercise of their sovereignty.
7.
It is a well-known fact that the list of human rights has never been static. It
has gradually been defined and embodied in legal instruments with the
development over time of society, the organization of the State, and the evolution
of political regimes. This explains why we are currently seeing the development and
expansion of political rights, and even what some have called the “human right to
democracy.” This development is expressed in the Inter-American Democratic
Charter, the juridical instrument that the inter-American system has engendered to
strengthen democracy and related rights. Its first article stipulates that: “The
peoples of the Americas have a right to democracy and their governments have an
obligation to promote and defend it.”
8.
Following the same rationale, the inter-American system has been defining
and refining the concept of democracy, strengthening the evolutive meaning of
political rights above and beyond the text of the provisions of Article 23 of the
Convention. This development has to be borne in mind when deciding a contentious
case on the matter as, indeed, the Court has done in this judgment.
9.
In this case, the Court has ruled on the alleged violation of political rights
(Article 23 of the Convention) and on equality before the law (Article 24 of the
Convention), in addition to the violation of Articles 8 and 25. This separate opinion
does not need to repeat the findings of the Court that are set out in the judgment
in the Case of YATAMA. As I pointed out above, I fully share the content of this
judgment and refer to it. Nevertheless, it gives rise to some reflections of a general
nature on political rights that are prompted by this specific case.
10.
Article 23 of the American Convention on Human Rights stipulates a series of
State obligations with regard to political rights. These are grouped into three types
of rights which entail State obligations as a logical counterpart: (1) to take part in
the conduct of public affairs, directly or through freely chosen representatives (Art.
23(1)(a); (2) to vote and to be elected in genuine periodic elections, which shall be
by universal and equal suffrage and by secret ballot that guarantees the free
expression of the will of the voters (Art. 23(1)(b), and; (c) to have access, under
general conditions of equality, to the public service of [one’s] country (Art.
23(1)(c). In this judgment, the Court declares that all the rights embodied in Article
23(1) have been violated. The Court also declares that Article 24 of the Convention
has been violated as regards the right to equality and non-discrimination.
11.
A first general consideration is that, in this case, the political rights which
the Court considers that Nicaragua has violated have been violated twice. On the
one hand, because the provisions of Electoral Act No. 331 of 2000 violated Article
23 owing to the ambiguity of several of its provisions, the obstacles that it
established to the electoral participation of organizations other than political
parties, and the requirements that it establishes for the presentation of candidates
in at least 80% of the municipalities of the respective districts and 80% of the total
number of candidacies. On the other hand, because the State has failed to comply
with its obligation, established in Article 1(1) and 2 in relation to Article 23, to
produce the appropriate conditions and mechanisms for the participation in public
affairs of those who wished to be candidates in the Atlantic Coast of Nicaragua as
members or representatives of YATAMA, an organization that represents the
indigenous peoples of this region of the country.