59
has been used to construe conventional rights in accordance with the rights that
result from representative democracy as a form of government.235
218. Secondly, Article 29 has been used to define construction criteria, such as the
principle of “evolving interpretation” of human right treaties, which is “consistent
with general interpretation rules” contained in such Article.236 Furthermore, the
principle of “application of the most favorable rule for protection of human rights”
has been developed in connection with Article 29(b)237 and the prohibition of
depleting the main content of rights as a result of Article 29(a).238
219. Thirdly, the Court resorted to Article 29 to determine the scope of its advisory
jurisdiction. In this regard, it has been noted that, in accordance with Article 29(d),
“in interpreting the Convention in the exercise of its advisory jurisdiction, the Court
may have to interpret the [American] Declaration [of the Rights and Duties of
Man].”239 Furthermore, the Court has held that “to exclude, a priori, from its advisory
jurisdiction international human rights treaties that are binding on American States
would weaken the full guarantee of the rights proclaimed in those treaties and, in
turn, conflict with the rules enunciated in Article 29 (b) of the Convention.”240
220. To respond to the allegations of the representative, it is necessary to
determine, firstly, if Article 29(c) enshrines an individual guarantee that, if not
complied with, may originate in itself a declaration of a violation under the
contentious jurisdiction of the Court.
221. In that regard, pursuant to the contentious jurisdiction of the Court, the
interpretation principles contained in Article 29(c) can only result in a violation of a
right unduly construed in accordance with those principles.
222. Therefore, it is necessary to analyze the right the representative alleges
violated in relation to such interpretation principles. The representative makes
reference to the “right to democracy” regarding the exercise of powers under the
235
Through the application of Article 29(c), the Court held that the scope of the legality principle set
forth in Article 9 for criminal proceedings covers disciplinary administrative proceedings (Cf. Case of Baena
Ricardo et al. v. Panamá. Merits, Reparations and Costs. Judgment of February 2, 2001. Series C No. 72,
paras. 105 and 106) and has recognized the relatives of the victims of forced disappearance as victims,
additionally, of a violation of Article 8(1) of the Convention (Cf. Case of Blake v. Guatemala. Merits.
Judgment of January 24, 1998. Series C No. 36, paras. 96 and 97).
236
Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 233, para. 148; Case of the
“Five Pensioners,” supra note 234, para. 103; Case of the Yakye Axa Indigenous, supra note 233, para.
125; Case of the “Mapiripán Massacre,” supra note 233, para. 106; Case of the Sawhoyamaxa Indigenous
Community, supra note 233, para. 117, and Case of the Ituango Massacres, supra note 231, para. 155.
237
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85, supra note 232,
para. 52; Case of Ricardo Canese, supra note 152, para. 180 and 181, and Case of the “Mapiripán
Massacre,” supra note 233, para. 106.
238
Cf. Case of Benjamin et al., supra note 232, paras. 63 and 81; Case of Constantine et al., supra
note 232, para. 63 y 81; Case of Carpio Nicolle et al. v. Guatemala. Merits, Reparations and Costs.
Judgment of November 22, 2004. Series C No. 117, para. 132, and Case of Yatama, supra note 63, para.
204.
239
Cf. Interpretation of the American Declaration of the Rights and Duties of Man within the
Framework of Article 64 of the American Convention on Human Rights. Advisory Opinion OC-10/89 of July
14,1989. Series A No. 10, para. 36.
240
Cf. “Other treaties” subject to the advisory jurisdiction of the Court (Art. 64 American Convention
on Human Rights). Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, para. 42. See also
Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human
Rights). Advisory Opinion OC-15/97 of November 14 1997. Series A No. 15, para. 31.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos