INTER-AMERICAN COURT OF HUMAN RIGHTS ADVISORY

INTER-AMERICAN COURT OF HUMAN RIGHTS

ADVISORY OPINION OC-28/21

OF JUNE 7, 2021

REQUESTED BY THE REPUBLIC OF COLOMBIA

PRESIDENTIAL REELECTION WITHOUT TERM LIMITS IN THE CONTEXT OF THE

INTER-AMERICAN HUMAN RIGHTS SYSTEM

(Interpretation and scope of articles 1, 23, 24, and 32 of the American Convention

on Human Rights, XX of the American Declaration of the Rights and Duties of

Man, 3(d) of the Charter of the Organization of American States and of the

Inter-American Democratic Charter)

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the

Court”), composed of the following judges:

Elizabeth Odio Benito, President

L. Patricio Pazmiño Freire, Vice President

Eduardo Vio Grossi, Judge

Humberto Antonio Sierra Porto, Judge

Eduardo Ferrer Mac-Gregor Poisot, Judge

Eugenio Raúl Zaffaroni, Judge, and

Ricardo Pérez Manrique, Judge,

also present,

Pablo Saavedra Alessandri, Secretary, and

Romina I. Sijniensky, Deputy Secretary,

pursuant to Article 64(1) of the American Convention on Human Rights (hereinafter “the

American Convention” or “the Convention”) and articles 70 to 75 of the Rules of Procedure of

the Court (hereinafter “the Rules of Procedure”), issues the following advisory opinion, which

is structured as follows:

TABLE OF CONTENTS

I PRESENTATION OF THE REQUEST ....................................................................................................................... 3

II PROCEEDINGS BEFORE THE COURT ................................................................................................................... 3

III COMPETENCE AND ADMISSIBILITY ................................................................................................................... 8

A. THE FORMAL REQUIREMENT TO SPECIFY THE PROVISIONS TO BE INTERPRETED .....................................................................................10

B. THE EXISTENCE OF CERTAIN PETITIONS PENDING BEFORE THE INTER-AMERICAN COMMISSION ...........................................................10

C. COMPETENCE REGARDING THE REGIONAL INSTRUMENTS INVOLVED .....................................................................................................11

D. THE ADMISSIBILITY OF THE REQUEST FOR AN ADVISORY OPINION ..........................................................................................................12

E. THE FORMAL REQUIREMENT TO WORD THE QUESTIONS PRECISELY AND THE COURT’S AUTHORITY TO REPHRASE THE QUESTIONS

POSED .................................................................................................................................................................................................................13

IV DEMOCRACY, THE RULE OF LAW, AND HUMAN RIGHTS ................................................................................. 15

V THE PRINCIPLES OF REPRESENTATIVE DEMOCRACY ......................................................................................... 20

VI COMPATIBILITY OF PROHIBITING INDEFINITE PRESIDENTIAL RE-ELECTION WITH THE AMERICAN CONVENTION

......................................................................................................................................................................... 26

A. PRESIDENTIAL REELECTION WITHOUT TERM LIMITS AS AN AUTONOMOUS HUMAN RIGHT ....................................................................27

B. COMPATIBILITY OF PROHIBITION ON PRESIDENTIAL REELECTION WITHOUT TERM LIMITS WITH POLITICAL RIGHTS ..............................30

VII THE COMPATIBILITY OF UNLIMITED PRESIDENTIAL REELECTION WITH HUMAN RIGHTS OBLIGATIONS ........... 35

VIII OPINION ..................................................................................................................................................... 39

INTER-AMERICAN COURT. PRESIDENTIAL REELECTION WITHOUT TERM LIMITS IN PRESIDENTIAL SYSTEMS IN THE

CONTEXT OF THE INTER-AMERICAN HUMAN RIGHTS SYSTEM. (INTERPRETATION AND SCOPE OF ARTICLES 1, 23,

24, AND 32 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, XX OF THE AMERICAN DECLARATION OF THE

RIGHTS AND DUTIES OF MAN, 3(D) OF THE CHARTER OF THE ORGANIZATION OF AMERICAN STATES AND OF THE

INTER-AMERICAN DEMOCRATIC CHARTER) ADVISORY OPINION OC-28/21 OF JUNE 7, 2021. .............................. 40

PRESENTATION OF THE REQUEST

1. On October 21, 2019, the Republic of Colombia (hereinafter “Colombia,” “the Colombian

State,” or the “requesting State”), submitted—based on Article 64(1) of the American

Convention and in accordance with the provisions of Article 70(1) and (2) of the Rules of

Procedure—a request for an advisory opinion on “indefinite presidential reelection in the

context of the inter-American human rights system” (hereinafter “the request”).

2. Colombia presented the considerations that led to the request and noted that:

The issuance of the requested opinion is justified by the diversity of positions in the

countries of the continent on presidential reelection.

[…] While some States have sought to eliminate or prohibit it, others have understood

reelection—even reelection without term limits—as a right of those in power. This, however,

ignores the fact that presidential reelection—particularly unlimted presidential reelection—

gives rise to serious tensions between the right of the person in power to be elected and

the right of all citizens to choose their leaders freely, within the framework of authentic

regular elections. This situation gives rise to multiple challenges and questions of great

importance to the consolidation and stability of democracies and the protection of human

rights in the Americas, matters in which all OAS member States have a legitimate interest.

3. Based on this, Colombia submitted the following specific questions to the Court:

i) Under international law, is presidential reelection without term limits a human right

protected by the American Convention on Human Rights? In this sense, do regulations that

limit or prohibit presidential reelection violate Article 23 of the American Convention on

Human Rights, either by restricting the political rights of the individual seeking to be

reelected or by restricting the political rights of voters? Or, on the contrary, is limiting or

prohibiting presidential reelection a restriction of political rights that is consistent with the

principles of legality, necessity and proportionality, in accordance with the case law of the

Inter-American Court of Human Rights on the matter?

ii) Should a State change or seek to change its legal system to ensure, promote, foster,

or prolong a ruler’s tenure in power through presidential reelection without term limits,

what are the effects of this change with regard to States’ obligations to respect and

guarantee human rights? Does this change run contrary to the State’s international human

rights obligations and, in particular, to their obligations to guarantee the effective exercise

of the rights to: (a) take part in the conduct of public affairs, directly or through freely

chosen representatives; (b) vote and 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; and (c) have access, under general conditions of equality, to the

public service of his country.

4. Colombia appointed Mr. Camilo Gómez Alzate, Director of the National Agency for Legal

Defense of the State, as its agent for this request.

PROCEEDINGS BEFORE THE COURT

The full text of the request can be accessed through the following link on the Court's website:

http://www.corteidh.or.cr/docs/opiniones/soc_04_19_es.pdf

5. Through notes dated February 17, 2020, the Secretariat of the Court (hereinafter “the

Secretariat”), in accordance with the provisions of Article 73(1)

of the Rules of Procedure,

transmitted the query to the other Member States of the Organization of American States

(hereinafter “the OAS”), the Secretary General of the OAS, the President of the Permanent

Council of the OAS, the President of the Inter-American Juridical Committee and the Inter-

American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the

Commission ”). These communications indicated that the Presidency of the Court, in

consultation with the Court, had set May 18, 2020 as the deadline for submitting written

observations regarding the aforementioned request.

Likewise, following instructions from the

President and in accordance with the provisions of Article 73(3) of the Rules of Procedure,

the

Secretariat, through notes of February 17, 2020, invited various international organizations

and civil society and academic institutions of the region to submit their written opinions on the

points raised for consultation by the aforementioned deadline. Finally, an open invitation was

issued through the Court’s website to all interested parties to present their written opinions

on the points raised for consultation.

6. The deadline expired and the following observations were received by the Secretariat:

a. Written observations submitted by OAS states: 1) Plurinational State of Bolivia; 2) Republic of

Colombia; 3) United States of America, and 4) Republic of Nicaragua.

b. Written observations submitted by OAS organs: 1) Inter-American Commission on Human

Rights, and 2) OAS General Secretariat.

c. Written observations submitted by academic institutions, non-governmental organizations,

and individuals from civil society: 1) Academia Boliviana de Estudios Constitucionales; 2)

Academia Interamericana de Derechos Humanos de la Universidad Autónoma de Coahuila,

Mexico; 3) Asociación Civil de Estudios Constitucionales; 4) Asamblea Permanente de

Derechos Humanos, Bolivia; 5) Bloque Constitucional, Venezuela; 6) Centro de Investigación

Jurídica Aplicada y Consultoría Integral, Sociedad Civil (CICACI); 7) Centro de Investigación y

Promoción de los Derechos Humanos (CIPRODEH); 8) Centro Strategia Electoral A.C.; 9)

Centro Universitário Antônio Eufrásio de Toledo; 10) Ciudadanos del Mundo por Derechos

Humanos; 11) Clínica Interamericana de Direitos Humanos do Núcleo Interamericano de

Direitos Humanos da Faculdade Nacional de Direito da Universidade Federal do Rio de Janeiro

(NIDH/UFRJ); 12) Clínica de Direitos Humanos e Direito Ambiental da Universidade do Estado

do Amazonas e Grupo de Pesquisa Direitos Humanos na Amazônia; 13) Clínica Jurídica de la

Facultad de Derecho de la Corporación Universitaria de Sabaneta; 14) Clínica Jurídica en

Derechos Humanos de la Universidad Santiago de Cali; 15) Comisión Colombiana de Juristas;

16) Presidential Human Rights Commission of the Interim Government of the Bolivarian

Republic of Venezuela; 17) Corporación de Interés Público y Justicia (CIPJUS); 18) Derechos

en Acción; 19) Equipo en formación continua sobre derechos humanos "Qhapaj Ñan"(Camino

Noble), comprised of students of the Universidad San Francisco Xavier de Chuquisaca, Bolivia;

Article 73(1) of the Rules of Procedure: “Upon receipt of a request for an advisory opinion, the Secretary shall

transmit copies thereof to all of the Member States, the Commission, the Permanent Council through its Presidency,

the Secretary General, and, if applicable, to the OAS organs whose sphere of competence is referred to in the request.”

Because many countries in the region were affected by the disease known as COVID-19, classified by the World

Health Organization as a global health emergency, the Court signed agreements 1/20 of March 17, 2020 and 2/20 of

April 16, 2020, whereby it paused the calculation of all the deadlines from March 17 to May 20, 2020, thus extending

the deadline for the submission of written observations to July 24, 2020.

Article 73(3) of the Rules of Procedure: “The Presidency may invite or authorize any interested party to submit a

written opinion on the issues covered by the request. If the request is governed by Article 64(2) of the Convention, the

Presidency may do so after prior consultation with the Agent.”

The request for an advisory opinion presented by Colombia and the written and oral observations from the

participating States, the Inter-American Commission, bodies, non-governmental organizations, academic institutions,

and individuals from civil society can be viewed here on the Court’s website:

http://www.corteidh.or.cr/observaciones_oc_new.cfm?lang=es&lang_oc=es&nId_oc=2171

20) Escuela Judicial Electoral del Tribunal Electoral del Poder Judicial de la Federación, Mexico;

21) Escuela Libre de Derecho, Mexico; 22) Defiende Venezuela and Instituto de

Investigaciones Jurídicas of the Universidad Católica Andrés Bello; 23) Due Process of Law

Foundation (DPLF); 24) Fundación Diversencia; 25) Grupo de Investigación Justicia, Ámbito

Público y Derechos Humanos y Semillero de Fundamentos Filosóficos del Derecho

Constitucional of the School of Law and Political Science of the Universidad de La Sabana; 26)

Iniciativa Democrática de España y las Américas (IDEA) 27) Instituto de Gobernabilidad del

Perú (INGOPE); 28) Núcleo de Estudios en Sistemas en Derechos Humanos y del Centro de

Estudios de la Constitución, Universidad Federal de Paraná; 29) Observatorio de Intervención

Ciudadana Constitucional Universidad Libre de Bogotá; 30) Universidad de Flores and

Universidad de Córdoba; 31) Alfredo Ortega Franco; 32) Allan R. Brewer-Carías; 33) Álvaro

Molinares and Luiza Tavares da Motta; 34) Amaury A. Reyes-Torres; 35) Andrés Figueroa

Galvis; 36) Björn Arp; 37) Carlos Eduardo García Granados; 38) Carolina Rodríguez Bejarano

and Eudoro Echeverri Quintana; 39) Damián González-Salzberg; 40) Carolina Rodriguez

Bejarano, Salomé Ramírez Sierra, and Kevin Serna Álvarez; 41) Deisy Meneses Daza, Ayda

Malena Imbacuán, and Anderson Muñoz Buitrón; 42) Edier Esteban Manco Pineda; 43)

Federico Vaschetto, Jihde Tatiana Hernández Gutiérrez, Ricardo Fabián Pascumal Luna, Marcia

Campos Delgado, Alexandra Melissa Valdivia Salazar, Kevin Leonardo Ruiz Rodríguez, Yaiza

Ferrer Mezquita, Bryan Antonio Veintimilla Párraga, Antonella Balbiani Neder, Esteban Duarte

Herrera, Alison Adriana Berbetty Omiste, Jael Nancy Vaquela Soto, and Daniela Beatríz

Albrech; 44) Harold Bertot Triana; 45) Dolly Andrea Lugo Cortés and Elizabeth Duarte

Cristancho; 46) Ilka Treminio and Juan Manuel Muñoz; 47) John Edinson Sanchez Vargas; 48)

Jorge "Tuto" Quiroga Ramírez; 49) Juan Reynaldo Salinas Goytia; 50) Julián Fernando Montoya

Pipicano; 51) Leonardo Rivera Mendoza; 52) Pablo Damián Colmegna; 53) Roberto Ogg

Fábrega and Ainoa Prieto García; 54) Sergio Armando Villa Ramos; 55) Thairi Moya Sánchez

and Víctor Rodríguez, and 56) Xochithl Guadalupe Rangel Romero.

7. Once the written procedure was completed, on September 11, 2020, the President of

the Court issued an order

—in accordance with the provisions of Article 73(4) of the Rules of

Procedure

—calling a public hearing and inviting the requesting State and others Member

states, the Inter-American Commission on Human Rights, the General Secretariat of the OAS,

and all those who submitted their written observations and were duly accredited to give their

oral comments to the Court regarding the consultation.

8. The public hearing was held on September 28, 29, and 30, 2020, in the framework of

the 137th regular sessions of the Inter-American Court of Human Rights, held virtually.

9. The following persons appeared before the Court:

1) For the requesting State: Mirza Gnecco Plá, Director of the Office on Human Rights and

International Humanitarian Law of the Ministry of Foreign Affairs, and Camilo Gómez Alzate,

Director of the National Agency for Legal Defense of the State and Agent of the State.

2) For the Plurinational State of Bolivia: William Herrera Añez, Charge d'Affaires of the Bolivian

Embassy in Costa Rica; Alejandro Roda Rojas, Deputy Attorney for Defense and Legal

Representation of the State, and Yoseland Cesar Pinto, General Director of Defense of Human

Rights and the Environment.

3) For the United States of America: Thomas Weatherall and Oliver M. Lewis, Office of the Legal

Adviser, U.S. Department of State.

Article 73(4) of the Rules of Procedure: “At the conclusion of the written proceedings, the Court shall decide whether

oral proceedings should take place and shall establish the date for a hearing, unless it delegates the latter task to the

Presidency. Prior consultation with the Agent is required in cases governed by Article 64(2) of the Convention.”

Cf. Request for Advisory Opinion OC-28. Call to hearing. Order of the President of the Court of September 11, 2020.

Available at: http://www.corteidh.or.cr/docs/asuntos/solicitud_11_09_2020_spa.pdf.

4) For the Republic of Panama: Arlette Mendieta, Director in Charge of International Legal Affairs

and Treaties of the Ministry of Foreign Affairs, and Salvador Sánchez González, Director of the

Institute for Democratic Studies of the Electoral Court.

5) For the Inter-American Commission on Human Rights: Joel Hernández García, President, and

Marisol Blanchard, Assistant Executive Secretary.

6) For the General Secretariat of the Organization of American States: Francisco Guerrero,

Secretary for Strengthening Democracy, and Gerardo de Icaza, Director of the Department of

Electoral Cooperation and Observation.

7) For the Presidential Commission for Human Rights and Victim Response of the Interim

Government of the Bolivarian Republic of Venezuela: Humberto Prado Sifontes, Presidential

Commissioner for Human Rights and Victim Response of the Interim Government of the Bolivarian

Republic of Venezuela, and Gabriel José Ortiz Crespo, International Relations and Litigation

Coordinator.

8) For the Academia Interamericana de Derechos Humanos de la Universidad Autónoma of

Coahuila, Mexico: Mrs. Irene Spigno, Director.

9) For the Academia Boliviana de Estudios Constitucionales: Jorge Antonio Asbun Rojas,

President, and José Antonio Rivera Santibañez, Vice President.

10) For the Asamblea Permanente de Derechos Humanos de Bolivia: Amparo Carvajal Baños,

President, and Lizeth Limachi Yapura, Lawyer.

11) For the Asociación Civil de Estudios Constitucionales (ACEC): Mr. and Mrs. Pedro A. Caminos,

President, and María Lorena González Tocci, Treasurer.

12) For the Bloque Constitucional de Venezuela: Mrs. Cecilia Sosa Gómez, former President of the

Supreme Court of Justice of Venezuela and Academic Coordinator.

13) For the Centro de Investigación Jurídica Aplicada y Consultoría Integral, Sociedad Civil

(CICACI): Mr. Jorge Alberto Pérez Tolentino.

14) For the Grupo de Estudios de Derecho Internacional Público y Privado of the Centro

Universitario Antonio Eufrasio de Toledo de Presidente Prudente: Lucas Octávio Noya dos Santos

and Lucas Rocha Bragato.

15) For the Centro de Investigación y Promoción de los Derechos Humanos (CIPRODEH): Ariel

Edgardo Díaz and Carlos Joaquín Méndez Quan.

16) For the Clínica de Litigio Electoral del Centro Strategia Electoral A.C.: Arturo Espinosa Silis

and Rafael Cruz Vargas.

17) For Ciudadanos del Mundo por Derechos Humanos: Gloria Perico de Galindo and Gloria Ríos

Rendón.

18) For the Clínica Jurídica en Derechos Humanos de la Universidad Santiago de Cali: Mayra

Alejandra García Ramírez and Liliana Ambuila Valencia.

19) For the Inter-American Human Rights Clinic of the Inter-American Human Rights Hub of the

Law School of the Universidade Federal do Rio de Janeiro (NIDH/UFRJ): Siddharta Legale and

Maria Carolina Ribeiro de Sá.

20) For the Comisión Colombiana de Juristas: Gustavo Gallón and Esteban Vargas Pelaez.

21) For the Corporación Centro de Interés Público y Justicia (CIPJUS): Karen Daniela Rosero

Narváez and Álvaro Cubillos Ruiz.

22) For Defiende Venezuela and the Instituto de Investigaciones Jurídicas of the Universidad

Católica Andrés Bello: Harold Miñarro Escalona and Jaiber Núñez.

23) For the Human Rights and Environmental Law Clinic of the Universidad del Estado de

Amazonas and the Grupo de Investigaciones de Derechos Humanos de la Amazonía: Sílvia Maria

da Silveira Loureiro and Laís Rachel Brandão de Mello.

24) For Derechos en Acción: Mr. Guido Ibargüen, Executive Director.

25) For the Fundación por el Debido Proceso (DPLF): Claudia Martin and Ramiro Orias Arredondo.

26) For the Grupo de Investigación Justicia, Ámbito Público y Derechos Humanos y Semillero de

Fundamentos Filosóficos del Derecho Constitucional of the School of Law and Political Science of

the Universidad de La Sabana: María Camila Osorio Acevedo and Jacobo Gómez Posada.

27) For the Instituto de Gobernabilidad del Perú (INGOPE): Luis Ángel Zavala Espino, President.

28) For the Núcleo de Estudios en Derechos Humanos (NESIDH) and the Centro de Estudios de

Constitucional (CCONS) of the Universidad Federal de Paraná: Mrs. Melina Girardi Fachin and Mrs.

Ana Carolina Lopes Olsen.

29) For the Observatorio de Intervención Ciudadana Constitucional of the School of Law of the

Universidad Libre de Bogotá: Jorge Kenneth Burbano Villamarín, Director, and David Andrés

Murillo Cruz.

30) For the Universidad de Flores and the Universidad Católica de Córdoba: Christian G. Sommer

and Agustina Vázquez.

31) For the Universidad Libre de Colombia, Pereira Campus: Salomé Ramírez Sierra and Kevin

Serna Álvarez.

32) For the Iniciativa Democrática de España y las Américas (IDEA): Andrés Pastrana, former

President of the Republic of Colombia, and Asdrúbal Aguiar, Secretary General of IDEA.

33) For the Escuela Libre de Derecho México: Andrea Marlenne Castillo.

34) Álvaro Molinares and Luiza Tavares da Motta

35) Alfredo Ortega Franco

36) Amaury A. Reyes-Torres

37) Andrés Figueroa Galvis

38) Björn Arp

39) El señor Carlos Eduardo García Granados

40) Carolina Rodríguez Bejarano and Eudoro Echeverri Quintana

41) Damian González-Salzberg

42) Ayda Malena Imbacuán and Anderson Muñoz Buitrón

43) Dolly Andrea Lugo Cortés and Elizabeth Duarte Cristancho

44) Edier Esteban Manco Pineda

45) Jihde Tatiana Hernández Gutiérrez and Alexandra Melissa Valdivia Salazar

46) Harold Bertot Triana

47) Ilka Treminio Sánchez and Juan Manuel Muñoz

48) Jorge "Tuto" Quiroga Ramírez, former President of the Plurinational State of Bolivia, and Luis

Ángel Vásquez Villamor

49) Juan Reynaldo Salinas Goytia

50) Leonardo Rivera Mendoza

51) Roberto Ogg Fábrega and Ainoa Prieto García

52) Sergio Armando Villa Ramos

53) Thairi Moya Sánchez and Víctor Rodríguez Cedeño

54) Xochithl Guadalupe Rangel Romero.

10. At the hearing, the representatives of the Plurinational State of Bolivia asked that Judge

Eugenio Raúl Zaffaroni consider excusing himself from this advisory opinion. Regarding this,

this Court notes that the advisory function differs from its contentious jurisdiction in that there

is no dispute to be resolved.

In this sense, this decision does not refer to a particular State

and constitutes a general pronouncement on the issues raised by the requesting State. This

Court therefore finds that none of the grounds for recusal set forth in paragraph 1 of Article

19 of the Statute apply, and Judge Eugenio Raúl Zaffaroni thus shall participate in the

deliberation and voting of this advisory opinion.

11. On November 3, 2020, under a memorandum of understanding between the Inter-

American Court of Human Rights and the Permanent Secretariat of the Ibero-American Judicial

Summit, the high courts of the States Parties were consulted on their jurisprudence regarding

the reelection of presidents and other popularly-elected officials. Inputs were received from

the following courts: 1) Superior Court of Justice of Brazil; 2) Supreme Court of Justice of

Colombia; 3) Constitutional Court of Colombia; 4) Constitutional Chamber of the Supreme

Court of Justice of Costa Rica; 5) Constitutional Court of Ecuador; 6) Supreme Court of Justice

of the Nation of Mexico, and 7) Supreme Court of Justice of Uruguay.

12. For the resolution of this request for an advisory opinion, the Court examined, took into

account, and analyzed the 62 briefs of observations, as well as the 54 contributions given

during hearings and interventions by States, the Inter-American Commission, the General

Secretariat of the OAS, non-governmental organizations, academic institutions, and people

from civil society, as well as the inputs provided by the region’s different courts (supra paras.

6, 9, and 11). The Court is grateful for these valuable contributions, which helped enlighten it

on the different issues submitted for consultation for the purposes of issuing this advisory

opinion.

13. The Court began deliberating on this advisory opinion on June 3, 2021, through a virtual

session.

III

COMPETENCE AND ADMISSIBILITY

14. Article 64(1) of the American Convention marks one of the aspects of the advisory

function of the Inter-American Court, by establishing that:

The member states of the Organization may consult the Court regarding the interpretation of this

Convention or of other treaties concerning the protection of human rights in the American states.

Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization

of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the

Court.

15. The consultation submitted to the Court by the requesting State is covered by the

aforementioned Article 64(1) of the Convention. Colombia is a member State of the OAS and

Cf. Reports of the Inter-American Commission on Human Rights (Article 51 of the American Convention on Human

Rights). Advisory Opinion OC-15/97 of November 14, 1997. Series A No. 15, paras. 25 and 26, The institution of asylum,

and its recognition as a human right under the Inter-American System of Protection (interpretation and scope of

Articles 5, 22(7) and 22(8) in relation to Article 1(1) of the American Convention on Human Rights). Advisory Opinion

OC-25/18 of May 30, 2018. Series A No. 25, para. 50.

The Superior Court of Justice of Brazil indicated the tools available on its website to search its case law. The Supreme

Court of Justice of Colombia reported that the matter addressed by the consultation was outside its competence, but

forwarded the request to the Constitutional Court of Colombia, which did provide case law. The Supreme Court of

Justice of Uruguay reported that the Uruguayan Judicial Branch lacks jurisprudence on the matter, as it falls within the

competence of the independent Electoral Court. However, it did indicate the constitutional provisions applicable to

presidential reelection. All the other courts contributed internal case law on the subject.

Due to the exceptional circumstances brought about by the COVID-19 pandemic, this advisory opinion was

deliberated and approved during the one hundred and forty-second regular sessions, which was held remotely, using

technological means, as provided for by the Rules of Procedure of the Court.

is therefore authorized, under the Convention, to request an advisory opinion from the Inter-

American Court.

16. The central purpose of this advisory function is that the Inter-American Court issue an

opinion regarding the interpretation of the American Convention or other treaties concerning

the protection of human rights in the American States, thereby establishing the scope of its

competence. Along these lines, the Court has found that, where it refers to the Court's power

to issue an opinion on “other treaties concerning the protection of human rights in the

American States,” Article 64(1) of the Convention is broad and not restrictive.

17. Likewise, Articles 70

and 71

of the Rules of Procedure establish the formal

requirements that must be met for a request to be considered by the Court. Basically, they

place the following requirements on the requesting State or body: (i) formulate the questions

precisely; (ii) specify the provisions that must be interpreted; (iii) indicate the considerations

originating it, and (iv) provide the name and address of the agent. As previously established,

requirements (iii) and (iv) were duly met.

18. Regarding requirements (i) and (ii), the Court notes that the consultation submitted by

the State of Colombia has the following characteristics: (a) it contains a section called “Specific

Provisions,” in which the Court is asked to interpret various norms of “the American

Declaration, the OAS Charter, the American Convention, and the Inter-American Democratic

Charter,” and lists the sentences from the preambles and articles of these instruments that

the Court is requested to interpret; (b) only the first question refers specifically to Article 23

of the American Convention, while the second question does not specifically indicate which

provisions listed in the “Specific Provisions” section it would like interpreted; (c) the

interpretation of different legal provisions involving various regional instruments is requested,

and (d) the second question refers, as a factual presupposition, to “a State changing or seeking

to change its legal system to ensure, promote, foster, or prolong a ruler’s tenure in power

through presidential reelection without term limits.”

19. During the procedure related to this request, multiple written and oral comments offered

a variety of considerations on the Court's competence to issue this advisory opinion, as well

as on the admissibility of the questions posed. Therefore, the competence of the Court and

admissibility of the question posed by the requesting State will be examined below, for which

the pertinent considerations will be offered, in the following order: (a) the formal requirement

to specify the provisions to be interpreted; (b) the existence of certain petitions pending before

the Inter-American Commission; (c) competence over the regional instruments involved; (d)

the admissibility of the request for an advisory opinion; and (e) the formal requirement to

word the questions precisely and the Court’s authority to rephrase the questions posed.

Cf. “Other treaties” subject to the consultative jurisdiction of the Court (Article 64 of the American Convention on

Human Rights) Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, first opinion paragraph, and

Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States

and the consequences for State human rights obligations (interpretation and scope of articles 1, 2, 27, 29, 30, 31,

32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter

of the Organization of American States). Advisory Opinion OC-26/20, November 9, 2020. Series A No. 26, para. 14.

Article 70 of the Rules of Procedure of the Court establishes the following: “Interpretation of the Convention:

Requests for an advisory opinion under Article 64(1) of the Convention shall state with precision the specific

questions on which the opinion of the Court is being sought. 2. Requests for an advisory opinion submitted by a

Member State or by the Commission shall, in addition, identify the provisions to be interpreted, the considerations

giving rise to the request, and the names and addresses of the Agent or the Delegates [...].”

Article 71 of the Rules of Procedure of the Court establishes the following: “Interpretation of other treaties: 1. If,

as provided for in Article 64(1) of the Convention, the interpretation requested refers to other treaties concerning the

protection of human rights in the American States, the request shall indicate the name of the treaty and parties

thereto, the specific questions on which the opinion of the Court is being sought, and the considerations giving rise

to the request [...].”

A. The formal requirement to specify the provisions to be interpreted

20. The Court notes that only the second part of the first question asked by Colombia

specifies Article 23 of the American Convention as the norm for which interpretation is

requested. However, Colombia’s request included a general section called “Specific provisions”

with a list of the provisions whose interpretation is requested (supra para. 18). In this sense,

based on the nature of the questions raised, the Court understands both questions to be

related to all the provisions listed in that section, with respect to which an interpretation is

requested, namely: the four unnumbered paragraphs of the recitals of the resolution of the

Ninth International American Conference; the six unnumbered paragraphs of the preamble

and Articles XX and XXXIII of the American Declaration of the Rights and Duties of Man

(hereinafter “American Declaration”); the first to fifth and seventh unnumbered paragraphs of

the preamble, and article 3.d) of the Charter of the Organization of American States

(hereinafter “OAS Charter”); the five unnumbered paragraphs of the preamble and Articles 1,

2, 23, 24, 29 and 32(2) of the American Convention on Human Rights; and the first, fifth,

sixth, eighth, ninth, sixteenth, seventeenth, nineteenth and twentieth paragraphs, not

numbered in the preamble, as well as Articles 2 to 7 of the Inter-American Democratic Charter

(hereinafter “Democratic Charter”).

21. In sum, the Court finds that Colombia fulfilled its duty to specify the provisions of the

American Convention, the OAS Charter, the American Declaration, and the Democratic Charter

that require interpretation in accordance with the State’s consultation.

B. The existence of certain petitions pending before the Inter-American

Commission

22. Some observations made reference to petitions pending before the Inter-American

Commission related to the subject matter of the consultation.

Regarding this, the

Commission informed the Court of the existence of three petitions in the admissibility stage

regarding Bolivia and one in the merits stage regarding Nicaragua,

all four related to the

questions posed by Colombia. Likewise, during the processing of this Advisory Opinion, a

person presented a written observation to the Court stating that he was the representative in

the petition against Nicaragua and asked the Court to declare this request inadmissible

because, in his opinion, an Advisory Opinion issued by the Court would undermine the

contentious jurisdiction of the Court in this individual case.

23. In this regard, the Court recalls that, as it has found in other advisory opinion

proceedings, the mere fact that there are petitions before the Commission or contentious

cases related to the question of the consultation is not enough for the Court to refrain from

responding to the questions submitted for consultation.

This conclusion of the Court is

broadly in line with the case law of the International Court of Justice, which has repeatedly

Comments of the Comisión Interamericana, de la Fundación por el Debido Proceso (DPLF) and Mr. Björn Arp.

According to the Admissibility Report, the petition against Nicaragua refers to the alleged violation of a person’s

political rights to stand as a candidate for the Presidency of Nicaragua in the same elections in which President Daniel

Ortega was seeking to be reelected for the third time. Cf. IACHR, Report No. 179/18; Petition 1360-11 Fabio Gadea

Mantilla v. Nicaragua, December 25, 2018. Available at: http://www.oas.org/es/cidh/decisiones/2018/NIAD1360-

11ES.pdf.

Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process

of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, paras. 45 to 65, and Gender identity and

equal protection, and nondiscrimination for same-sex couples. State obligations in relation to change of name, gender

identity, and rights deriving from a relationship between same-sex couples (interpretation and scope of Articles 1(1),

3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights). Advisory

Opinion OC-24/17 of November 24, 2017. Series A No. 24, para. 24.

rejected any request to refrain from exercising its advisory jurisdiction in situations where it

is argued that, because there is a dispute related to the matter in question, the request is for

the Court to rule surreptitiously on a contentious case.

24. The interpretive work that this Court must perform in the exercise of its advisory function

differs from its contentious jurisdiction in that there is no dispute to be resolved.

The main

purpose of the advisory function is to obtain a judicial interpretation of one or more provisions

of the Convention or of other treaties concerning the protection of human rights in the

American States.

Therefore, the advisory function is intended to assist the OAS Member

States and organs to comply fully and effectively with their relevant international obligations,

and to define and implement public policies to protect human rights, which does not constitute

a prejudgment of cases or petitions that are pending before the inter-American system.

25. Based on the foregoing considerations, the Court finds it has competence to rule on the

questions posed by Colombia.

C. Competence regarding the regional instruments involved

26. The Court has already established that the advisory function allows it to interpret any

norm of the American Convention, without excluding any aspect of it from the scope of

interpretation. In this sense, it is clear that because it is the “final interpreter of the American

Convention,”

the Court has competence to issue, with full authority, interpretations of all the

provisions of the Convention, including those of a procedural nature.

27. Likewise, as already established in other precedents, the OAS Charter is a treaty

regarding which the Court can exercise its advisory jurisdiction pursuant to Article 64(1) of

the Convention.

Additionally, Article 64(1) of the American Convention authorizes the Court

to render advisory opinions on the interpretation of the American Declaration, within the

framework and within the limits of its competence in relation to the OAS Charter and the

Convention or other treaties concerning the protection of human rights in the American

States.

Therefore, in this opinion, the Court will resort to the American Declaration when

interpreting the obligations emanating from the OAS Charter in its approach to the questions

posed by Colombia.

28. Additionally, the Court notes that the State has referred to multiple sentences in the

preambles of the four instruments. Regarding this, the Court deems it pertinent to specify that

Cf. Restrictions to the Death Penalty (Arts 4.2 and 4.4 American Convention on Human Rights). Advisory Opinion,

OC-3/83 of September 8, 1983. Series A No. 3, paras. 38 to 40, and International Court of Justice, Interpretation of

Peace Treaties, Advisory Opinion of March 30, 1950 (first phase), page 71; Reservations to the Convention on

Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 19; 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, paras. 32 to 33, and Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory. Advisory Opinion of July 9, 2004, paras. 43 to 50.

Cf. Advisory Opinion OC-15/97, supra, paras. 25 and 26, and Advisory Opinion OC-supra, 25/18, para. 50.

Cf. Advisory Opinion OC-3/83, supra, para. 22, and Advisory Opinion OC-supra, 25/18, para. 50.

Cf. Article 55 of the American Convention on Human Rights. Advisory Opinion OC-20/09 of September 29, 2009.

Series A No. 20, para. 18, and Advisory Opinion OC-26/20, supra, para. 25.

Cf. Advisory Opinion OC-20/09, supra, para. 18, and Advisory Opinion OC-26/20, supra, para. 25.

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, July 14, 1989, para. Series A No. 10, para.

44, and Advisory Opinion OC-26/20, supra, para. 26.

Cf. Advisory Opinion OC-10/89, supra, first and only opinion paragraph, and Advisory Opinion OC-26/20, supra,

para. 26.

the advisory function may involve examining the preambles of the international instruments

brought before the Court, and they may play different roles in the framework of the

interpretive activity.

In this regard, the Vienna Convention on the Law of Treaties

(hereinafter "Vienna Convention") establishes in its Article 31(2), that the text of a treaty also

includes the preamble and the annexes. The Court has, for example, referred to the preamble

of the American Convention because it contains “references that establish the object and

purpose of the treaty,”

as well as to elucidate the intentions of its drafters.

29. Lastly, the Court notes that the State explicitly requested the interpretation of certain

provisions of the Inter-American Democratic Charter. Regarding this instrument, the Court

has found that it constitutes an interpretive text of both the OAS Charter and the American

Convention.

Consequently, in interpreting the American Convention and the OAS Charter,

the Court will resort, where pertinent, to the provisions of the Democratic Charter when

addressing the questions posed by Colombia.

30. In conclusion, the Court is empowered to rule in its advisory capacity on the preamble

and all the provisions of the American Convention, the OAS Charter, the American Declaration,

and the Democratic Charter brought for consultation by the Colombian State, in the terms

indicated and insofar as they concern the protection of human rights in the American States

and therefore fall within the jurisdiction of the Court.

D. The admissibility of the request for an advisory opinion

31. Some comments emphasized that the request would be trying to respond to specific

events of a political nature

that are matters of sovereignty and self-determination of the

States of the region, and that, in addition, the second question referred to specific cases.

Therefore, the questions should be declared totally or partially inadmissible.

32. Regarding the first point, this Court emphasizes that it will only rule on the content and

scope of the human rights obligations arising from international law. Regarding the second

point, the Court notes that the mention of some examples serves the purpose of illustrating

the potential importance of setting criteria and interpreting the broad and general scope of

the legal question that is the subject of the consultation, without implying that the Court is

issuing a legal ruling on specific situations.

Quite the contrary, this allows the Court to signal

that its advisory opinion is not mere abstract speculation and that interest in it is justified by

Cf. Advisory Opinion OC-26/20, supra, para. 27.

Vienna Convention on the Law of Treaties, U.N. Doc A/CONF.39/27 (1969), U.N.T.S. vol. 1155, pg. 331, signed in

Vienna on May 23, 1969, entered into force on January 27, 1980.

Cf. Entitlement of legal entities to hold rights under the Inter-American Human Rights System (Interpretation and

scope of Article 1(2), in relation to Articles 1(2), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46 and 62(3) of the American

Convention on Human Rights, as well as of Article 8(1)(A) and (B) of the Protocol of San Salvador). Advisory Opinion

OC-22/16 of February 26, 2016. Series A No. 22, para. 41.

Cf. Advisory Opinion OC-22/16, supra, para. 47.

Cf. Advisory Opinion OC-26/20, supra, para. 42.

See, for example, observations of the Núcleo de estudos em direitos humanos (NESIDH) and the Centro de estudos

da constituição (CCONS) of the Universidad Federal de Paraná, the Clínica Jurídica en Derechos Humanos of the

Universidad Santiago, the Clínica de Derechos Humanos y Derecho Ambiental of the Universidad del Estado de

Amazonas, and the Grupo de Investigación “Derechos Humanos en Amazonia” and Mr. Andrés Figueroa Galvis.

Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process

of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 49, and Advisory Opinion OC-26/20,

supra, para. 30.

the benefit it may bring in terms of the international protection of human rights, as it refers

to an issue that is fundamental to the inter-American system as a whole.

33. In sum, the Court has found that although it must not lose sight of the fact that its

advisory function essentially entails the exercise of an interpretative authority, the

consultations must be practical in scope and have predictability of application. At the same

time, they should not be limited to an extremely precise factual circumstance that makes it

difficult to dissociate it from a pronouncement on a specific case, something that would be

detrimental to the general interest that a consultation could serve.

This ultimately requires

a careful exercise of judicial appraisal to discern the substantive object of the request whose

validity can be generalized and extended to all American States, beyond the reasons from

which it may have originated or references to particular facts, in order to assist the member

States and the organs of the OAS to fully and effectively comply with their international

obligations.

34. Consequently, the Court finds, without referring to any specific matter that may have

been indicated in the processing of this advisory proceeding by way of example, that it is

appropriate to proceed with consideration of the substantive object of this request in order to

serve the general interest that the Court rule on a matter of regional legal significance—that

is, indefinite presidential reelection in the context of the inter-American system.

E. The formal requirement to word the questions precisely and the Court’s

authority to rephrase the questions posed.

35. In the exercise of its advisory function, the Court is called upon to unpack the meaning,

purpose, and reasoning of international human rights norms.

Thus, in exercise of its powers

inherent to the competence granted by Article 64 of the Convention, it may have to refine or

clarify and, in certain cases, rephrase the questions posed to it, in order to clearly determine

the substantial object of its interpretive work.

36. In this regard, the Court finds that the first question posed by Colombia was stated

clearly and does not require rephrasing beyond the reference to the relevant legal provisions,

as indicated above. However, the Court notes that the second question is conditioned on

certain facts, insofar as it refers to hypothetical State conduct and asks the Court to determine

in the abstract their possible consequences, as well as whether they are in compliance with

the international normative framework. Regarding this point, the Court reiterates that, in the

exercise of its advisory function, it is not called upon to resolve matters of fact but to unpack

the meaning, purpose, and reasoning of international human rights norms.

Therefore, this

Court will reword the second question on the compatibility of presidential reelection without

term limits with representative democracy in the inter-American human rights protection

system. The Court finds that this wording allows for a better exercise of its advisory function

and reflects the essence of the second question posed by Colombia.

Cf. Advisory Opinion OC-16/99, supra, para. 49, and Advisory Opinion OC-26/20, supra, para. 30.

Cf. Advisory Opinion OC-16/99, supra, paras. 38 to 41, and Advisory Opinion OC-26/20, supra, para. 31.

Cf. Advisory Opinion OC-16/99, supra, para. 47, and Advisory Opinion OC-26/20, supra, para. 31.

Cf. International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts.

1 and 2 American Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14,

para. 23, and Advisory Opinion OC-26/20, supra, para. 33.

Cf. Advisory Opinion OC-25/18, supra, para. 55, and Advisory Opinion OC-26/20, supra, para. 33.

Cf. Advisory Opinion OC-14/94, supra, para. 23, and Advisory Opinion OC-26/20, supra, para. 33.

37. The Court therefore proceeds to rephrase the questions posed by Colombia as follows:

In view of the four unnumbered paragraphs of the recitals of the resolution of the Ninth

International American Conference; the six unnumbered paragraphs of the preamble

and Articles XX and XXXIII of the American Declaration of the Rights and Duties of Man;

the first to fifth and seventh unnumbered paragraphs of the preamble, and article 3.d)

of the Charter of the Organization of American States; the five unnumbered paragraphs

of the preamble and Articles 1, 2, 23, 24, 29 and 32(2) of the American Convention on

Human Rights; and the first, fifth, sixth, eighth, ninth, sixteenth, seventeenth,

nineteenth and twentieth paragraphs, not numbered, in the preamble, as well as

Articles 2 to 7 of the Democratic Charter:

i. 1) Is presidential reelection without term limits a human right protected by the

American Convention on Human Rights? In this sense, 2) Do regulations that limit

or prohibit presidential reelection violate Article 23 of the American Convention

on Human Rights, either by restricting the political rights of the individual seeking

to be reelected or by restricting the political rights of voters? Or, on the contrary,

3) Is limiting or prohibiting presidential reelection a restriction of political rights

that is consistent with the principles of legality, necessity and proportionality, in

accordance with the case law of the Inter-American Court of Human Rights in the

matter?

ii. Is presidential reelection without term limits compatible with representative

democracy in the inter-American human rights protection system?

38. For the purposes of this advisory opinion, this Court will define “presidential reelection

without term limits” as when a person serving as President of the Republic remains in office

for more than two consecutive periods of reasonable duration. The length of this term may

not be changed while it is being served.

39. In this regard, this Court notes that the request made by Colombia only refers to

presidential reelection without term limits and not presidential reelection in general.

Furthermore, it is inferred from the request that Colombia's questions are related to

presidential reelection without term limits in a presidential system. Therefore, the

considerations set forth by this Court in this advisory opinion are limited to the possibility of

presidential reelection without term limits in a presidential system like the one described in

paragraph 87 infra. Likewise, it should be emphasized that no reference will be made to

unlimited reelection to positions other than the Office of the President of the Republic, nor to

the possibility of presidential reelection in general when it is not unlimited, as defined in the

previous paragraph.

40. This Court also recalls that the advisory function constitutes “a service for all of the

members of the Inter-American system and is designed to assist them in fulfilling their

international human rights obligations.”

The Court also reiterates, as it has found on other

opportunities,

that the task of interpretation that it performs in the exercise of its advisory

function not only seeks to clarify the reason for, meaning and purpose of international human

rights norms, but also, and above all, to assist the OAS Member States and organs to comply

Cf. Advisory Opinion OC-1/82, para. 39, and Rights to freedom to organize, collective bargaining, and strike, and

their relation to other rights, with a gender perspective. (interpretation and scope of articles 13, 15, 16, 24, 25, and

26 in relation to articles 1(1) and 2 of the American Convention on Human Rights; articles 3, 6, 7, and 8 of the

Protocol of San Salvador; articles 2, 3, 4, 5, and 6 of the Convention of Belém do Pará; articles 34, 44, and 45 of the

Charter of the Organization of American States; and articles II, IV, XIV, XXI, and XXII of the American Declaration

on the Rights and Duties of Man). Advisory Opinion OC-27/21 of May 5, 2021. Series A No. 27, para. 35.

Cf. Advisory Opinion OC-1/82, para. 25, and Advisory Opinion OC-27/21, supra, para. 35.

fully and effectively with their relevant international obligations, and to define and implement

public policies to protect human rights. Thus, its interpretations aim to help strengthen the

human rights protection system.

41. The Court also finds it necessary to recall that, pursuant to international law, when a

State is a party to an international treaty, such as the American Convention on Human Rights,

the treaty is binding for all its organs, including the judiciary and the legislature, so that a

violation by any of these organs gives rise to the international responsibility of the State.

Accordingly, the Court considers that the different organs of the State must carry out the

corresponding enforcement of international treaty obligations, based also on the considerations

of the Court in exercise of its non-contentious or advisory competence, which undeniably

shares with its contentious jurisdiction the goal of the inter-American human rights system,

which is “the protection of the fundamental rights of the human being.”

42. In order to adequately answer the questions posed, the Court has decided to structure

this opinion as follows: (1) Chapter IV contains considerations on democracy, the rule of law,

and human rights; (2) Chapter V offers some considerations on the principles of representative

democracy; (3) Chapter VI answers Colombia’s first question; and (4) Chapter VII answers

the second question.

DEMOCRACY, THE RULE OF LAW, AND HUMAN RIGHTS

43. From its earliest decisions, the Court has established that “[t]he concept of rights and

freedoms as well as that of their guarantees cannot be divorced from the system of values

and principles that inspire it. In a democratic society, the rights and freedoms inherent in the

human person, the guarantees applicable to them, and the rule of law form a triad. Each

component thereof defines itself, complements and depends on the others for its meaning.”

44. The mere existence of a democratic regime does not guarantee, per se, permanent

respect for international law, including international human rights law, something established

even in the Inter-American Democratic Charter itself.

The democratic legitimacy of certain

facts or acts in a society is limited by the international norms and obligations for the protection

of human rights recognized in treaties such as the American Convention, such that the

existence of a true democratic regime is determined by both its formal and substantive

characteristics.

In this regard, there are limits to what is "susceptible to being decided" by

a democratic majority, in which enforcement of the Convention must also be prioritized, which

is the function and task of all government authorities and not solely the judiciary.

Cf. Rights and guarantees of children in the context of migration and/or in need of international protection, para.

Advisory Opinion OC-21/14 dated August 19, 2014. Series A No. 21, para. 31, and Advisory Opinion OC-27/21, supra,

para. 36.

Habeas corpus in Emergency Situations (Arts. 27(2), 25(1), and 7(6) American Convention on Human Rights.

Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 26, and Advisory Opinion OC-27/21, supra,

para. 39.

Cf. OAS General Assembly, Inter-American Democratic Charter, Resolution AG/RES. 1 (XXVIII-E/01) of September

11, 2001.

Cf. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para.

239.

Cf. Case of Gelman v. Uruguay, supra, para. 239.

45. Although the democratic principle means that leaders are to be elected by the majority,

one of the main objectives of a democracy must be respect for the rights of minorities. This

respect is guaranteed through the protection of the rule of law and human rights.

46. The interdependence between democracy, the rule of law, and the protection of human

rights is the basis of the entire system of which the Convention forms part.

47. In effect, the recitals of the Resolution of the Ninth International Conference of American

States adopting the American Declaration establish as follows:

The affirmation of essential human rights by the American States together with the

guarantees given by the internal regimes of the states establish the initial system of

protection considered by the American States as being suited to the present social and

juridical conditions, not without a recognition on their part that they should increasingly

strengthen that system in the international field as conditions become more favorable.

48. The preamble to the American Convention indicates that it was agreed to “Reaffirm[...]

their intention to consolidate in this hemisphere, within the framework of democratic

institutions, a system of personal liberty and social justice based on respect for the essential

rights of man.” Likewise, five of its articles expressly refer to democracy,

assuming it to be

the form of government in which it is possible to respect and guarantee the human rights

contained in the Convention.

49. Furthermore, the democratic principle is set forth in the Charter of the OAS, the founding

instrument of the organization and fundamental to the inter-American system.

Indeed,

following the amendment made through the Cartagena Protocol of 1985, the preamble to the

OAS Charter establishes “that representative democracy is an indispensable condition for the

stability, peace and development of the region.” Thus, Article 2 of the OAS Charter establishes

a series of essential aims, including “To strengthen the peace and security of the continent”

and “promote and consolidate representative democracy, with due respect for the principle of

nonintervention” in order to “put into practice the principles on which it is founded and to fulfill

its regional obligations under the Charter of the United Nations.”

50. Additionally, Article 3 of the OAS Charter states that “the solidarity of the American

States and the high aims which are sought through it require the political organization of those

States on the basis of the effective exercise of representative democracy” and “every State

has the right to choose, without external interference, its political, economic, and social system

and to organize itself in the way best suited to it.”

51. Several OAS resolutions have highlighted the importance of strengthening the rule of

law, as well as the interrelationship between it, democracy, and the guarantee of human

Mutatis mutandi, The Word "Laws" in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-

6/86 of May 9, 1986. Series A No. 6, para. 34, and Advisory Opinion OC-26/20, supra, para. 72. Similarly, the

preamble to the Universal Declaration of Human Rights states, “This resolution considers it essential that "such rights

be protected by a juridical system, so that men will not be driven to the extreme expedient of revolt against tyranny

and oppression." Likewise, the Warsaw Declaration highlighted in its preamble “the interdependence between peace,

development, human rights and democracy.” Cf. Warsaw Declaration, adopted by the Ministerial Conference of the

Community of Democracies held in Warsaw, Poland, on June 27, 2000.

Resolution of the Ninth International Conference of American States, “Whereas” paragraph four.

Articles 15, 16, 22, 29, and 32.

Cf. Advisory Opinion OC-6/86, supra, para. 34, and Advisory Opinion OC-26/20, supra, para. 72.

rights.

In this sense, for example, Resolution XXVII of the Tenth Inter-American Conference,

held in Caracas in 1954, stated that:

[…] The strengthening and effective exercise of democracy and the prevention of

totalitarian intervention require, not only repressive measures, but also other

measures that ensure the proper functioning of democratic institutions, among which

measures the systems for protecting human rights are of significant importance, along

with the freedoms of human beings through international or collective action.

52. Likewise, the Protocol of San Salvador recognizes that it is extremely important for

economic, social, cultural and environmental rights to be “reaffirmed, developed, perfected

and protected in order to consolidate in America, on the basis of full respect for the rights of

the individual, the democratic representative form of government as well as the right of its

peoples to development, self-determination, and the free disposal of their wealth and natural

resources.”

53. The relationship between human rights, the rule of law, and democracy was embodied

in the Inter-American Democratic Charter.

This legal instrument is a norm used for authentic

interpretation of the treaties to which it refers, since it reflects the interpretations of the norms

pertaining to democracy that OAS member states themselves make—including the States

parties to the Convention—both of the OAS Charter and of the Convention.

54. The Democratic Charter expressly states that, “The peoples of the Americas have a right

to democracy and their governments have an obligation to promote and defend it.”

In this

regard, it recognizes that “Democracy is essential for the social, political, and economic

Cf. Tenth Inter-American Conference, Caracas, 1954. Resolution XXVII on Strengthening the system for the

protection of Human Rights, and General Assembly of the Organization of American States. Resolution AG/RES 835

(XVI O/86) of November 15, 1986; OAS General Assembly, Resolution AG/RES. 1504 (XXVII-O/97) adopted at the

seventh plenary session, held on June 5, 1997; OAS General Assembly, Resolution AG/DEC. 85 (XLVI-O/16), adopted

at the second plenary session, held on June 14, 2016, Whereas 2; OAS General Assembly. Resolution AG/RES 2894

(XLVI-O/16), adopted at the fourth plenary session, held on June 15, 2016, Resolution 1; OAS General Assembly.

Resolution AG/RES 2905 (XLVII-O/17), adopted at the first plenary session, held on June 20, 2017, Resolution 1;

OAS General Assembly. Resolution AG/RES 2927 (XLVIII-O/18), adopted at the fourth plenary session, held on June

5, 2018), Resolution 1; Resolution AG/RES. 2931 (XLIX-O/19), adopted at the first plenary session, held on June 27,

2019, Resolutions 1 and 2, and Resolution AG/RES. 2958 (L-O/20), adopted at the fourth plenary session, held on

October 21, 2020, item “v”, Resolution 2

Tenth Inter-American Conference, Caracas, 1954. Resolution XXVII on Strengthening the system for the protection

of Human Rights.

The Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural

Rights (Protocol of San Salvador), Preamble.

Cf. OAS. Inter-American Democratic Charter. Approved at the first plenary session of the OAS General Assembly,

held on September 11, 2001 during the Twenty-eighth Period of Sessions, Articles 3 and 4. The Inter- American

Juridical Committee has held that "the Inter-American Democratic Charter was conceived as a tool to update, interpret

and apply the fundamental Charter of the OAS, and represents a progressive development of International Law."

CJI/RES. 159 (LXXV-O/09).

The “Whereas” paragraphs 2 and 4 of the Preamble of the Convention establish the following: “Reaffirming their

intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty

and social justice based on respect for the essential rights of man; [...] Considering that these principles have been set

forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of

Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined [...].” In this

sense, the Charter could also be classified as an agreement between the States parties to both treaties regarding the

application and interpretation of those instruments (Art. 31.3.a) of the Vienna Convention on the Law of Treaties:

“There shall be taken into account, together with the context: a) any subsequent agreement between the parties

regarding the interpretation of the treaty or the application of its provisions.” Cf. Case of San Miguel Sosa et al. v.

Venezuela. Merits, Reparations, and Costs. Judgment of February 8, 2018. Series C No. 348, para. 114, and Advisory

Opinion OC-26/20, supra, para. 139.

Inter-American Democratic Charter, article 1.

development of the peoples of the Americas.”

Likewise, the Democratic Charter establishes

that “The effective exercise of representative democracy is the basis for the rule of law and of

the constitutional regimes of the member states of the Organization of American States.”

Such is the fundamental role that the States of the region have given to representative

democracy, that the Democratic Charter establishes a system of collective guarantee through

which, when there is “an unconstitutional alteration of the constitutional regime that seriously

impairs the democratic order in a member state,” other States or the Secretary General can

immediately call a meeting of the Permanent Council, and if it is found that “there has been

an unconstitutional interruption of the democratic order of a member state, and that diplomatic

initiatives have failed, the special session shall take the decision to suspend said member state

from the exercise of its right to participate in the OAS by an affirmative vote of two thirds of

the member states.”

55. Taking into account the above, it is clear that the effective exercise of democracy in the

States of the Americas constitutes an international legal obligation and they have, in their

sovereignty, agreed that such exercise is no longer solely a matter of their domestic, internal,

or exclusive jurisdiction.

56. Therefore, the democratic principle inspires, orients, and guides the application of the

American Convention in a crosscutting manner. It is both a guiding principle and an interpretive

guideline. As a guiding principle, it articulates the form of political organization chosen by the

States of the Americas to achieve the values that the system wants to promote and protect,

among which is the full exercise of human rights.

As an interpretative guideline, it provides

clear orientation for its observance through the separation of powers and the proper functioning

of the democratic institutions of the States parties within the framework of the rule of law.

57. One of the ways in which the inter-American system ensures the strengthening of

democracy and political pluralism is through the protection of the political rights enshrined in

Article XX of the American Declaration and Article 23 of the Convention.

The effective

exercise of political rights constitutes an end in itself, as well as an essential means for

democratic societies to ensure the other human rights established in the Convention.

58. Article XX of the American Declaration establishes that, “Every person having legal

capacity is entitled to participate in the government of his country, directly or through his

representatives, and to take part in popular elections, which shall be by secret ballot, and shall

be honest, periodic and free.”

59. For its part, Article 23(1) of the Convention establishes that all citizens shall enjoy the

following rights and opportunities: i) the right to participation in the conduct of public affairs,

Inter-American Democratic Charter, article 1.

Inter-American Democratic Charter, article 2.

Inter-American Democratic Charter, articles 20 and 21.

Cf. Case of San Miguel Sosa et al. v. Venezuela. Merits, Reparations and Costs, supra, and Advisory Opinion

OC-26/20, supra, para. 72.

Cf. Advisory Opinion OC-26/20, supra, para. 72.

Cf. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of

August 6, 2008. Series C No. 184, para. 141, and Case of Petro Urrego v. Colombia. Preliminary Objections, Merits,

Reparations and Costs. Judgment of July 8, 2020. Series C No. 406, para. 93.

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 143, and Case of Petro Urrego v. Colombia, para. 93.

directly or through freely chosen representatives; ii) the right to vote and to be elected at

genuine periodic elections which shall be by universal and equal suffrage and shall be held by

secret ballot, guaranteeing the free expression of the will of voters; and iii) the right to access,

on general terms of equality, public service in their country. Unlike other articles of the

Convention, Article 23 establishes that its holders shall enjoy not only rights, but also

“opportunities.” The latter term entails the obligation to ensure, by taking positive measures,

that anyone who is the formal holder of political rights has the real possibility of exercising

them.

Consequently, the State must facilitate the ways and means to ensure that these

rights can be exercised effectively, respecting the principles of equality and non-

discrimination.

60. Political participation may include diverse and wide-ranging activities that the population

carries out individually or on an organized basis in order to intervene in the appointment of

those who will govern a State or who will be in charge of managing public affairs, as well as

to influence the development of State policies through direct participation mechanisms.

61. Citizens have the right to actively participate in the conduct of public affairs, directly

through referendums, plebiscites, or consultations, or through freely chosen representatives.

The right to vote is an essential element of democracy and one of the ways in which citizens

freely express their will and exercise their right to participate in government. This right means

that citizens can decide directly and choose freely and on equal terms who will represent them

in decision-making in public affairs.

62. For its part, political participation by exercising the right to be elected presupposes that

citizens can run as candidates on equal terms and that they can hold public office subject to

election if they are able to get the number of votes needed.

63. The right and opportunity to vote and to be elected enshrined in Article 23(1)(b) of the

American Convention is exercised in genuine periodic elections, conducted through universal

and equal suffrage and by secret ballot that guarantees the free expression of the will of the

voters.

64. Lastly, the right to access to public service under general conditions of equality protects

access to a direct form of participation in terms of the design, development and execution of

State policy through public service. These general conditions of equality are understood to

cover access to public service both by popular election and by appointment or nomination.

65. The obligations arising from Article 23 of the Convention must be interpreted in view of

the States of the region’s commitment to establishing representative democracies and

Cf. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of June

23, 2005. Series C No. 127, para. 195, and Case of Petro Urrego v. Colombia, para. 93.

Cf. Case of Yatama v. Nicaragua, supra, para. 192, and Case of Petro Urrego v. Colombia, supra, para. 93.

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 146, and Case of Petro Urrego v. Colombia, supra, para.

93.

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 147.

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 148.

Cf. Case of Yatama v. Nicaragua, supra, para. 207, and Case of Castañeda Gutman v. Mexico. Preliminary

Objections, Merits, Reparations and Costs. Judgment of August 6, 2008. Series C No. 184, para. 149.

Cf. Case of Yatama v. Nicaragua, supra, para. 200, and Case of Human Rights Defender et al. v. Guatemala.

Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 283, para. 186.

respecting the rule of law, which is derived from the American Convention itself, the Charter

of the OAS, and the Inter-American Democratic Charter.

THE PRINCIPLES OF REPRESENTATIVE DEMOCRACY

66. The Court recalls that the object and purpose of the Convention is “the protection of the

fundamental rights of the human being.”

It was therefore designed to protect the human

rights of individuals regardless of their nationality, vis-à-vis their own State or any other.

The State's commitment to full respect for and guarantee of human rights, as mandated by

Article 1 of the American Convention, constitutes an essential precondition for consolidating a

democracy and gives the State legitimacy before the international community.

67. According to the Inter-American Democratic Charter, “Essential elements of

representative democracy include, inter alia, respect for human rights and fundamental

freedoms, access to and the exercise of power in accordance with the rule of law, the holding

of periodic, free, and fair elections based on secret balloting and universal suffrage as an

expression of the sovereignty of the people, the pluralistic system of political parties and

organizations, and the separation of powers and independence of the branches of

government.”

68. Also, its Article 4 establishes that “Transparency in government activities, probity,

responsible public administration on the part of governments, respect for social rights, and

freedom of expression and of the press are essential components of the exercise of democracy.

The constitutional subordination of all state institutions to the legally constituted civilian

authority and respect for the rule of law on the part of all institutions and sectors of society

are equally essential to democracy.”

69. These articles then define the basic characteristics of a representative democracy,

without which a political system would cease to be one. To that extent, it is the Court's view

that they constitute the guiding criteria for answering the questions posed in the request for

an advisory opinion. Next, we will proceed to develop some of these characteristics, which are

related to this advisory opinion.

70. In previous paragraphs of this opinion (supra paras. 43 to 65), the Court described

respect for human rights and fundamental freedoms as one of the fundamental elements of a

representative democracy. In this sense, the only way human rights can truly and effectively

establish norms is through the recognition that they cannot be subject to majority rule, as it

is precisely these rights that have been defined as limitations on the principle of majority rule.

This Court has highlighted that the protection of human rights constitutes an insurmountable

limit on majority rule—that is, on what is "susceptible to being decided" by the majority by

democratic means.

Indeed, the validity of a human right recognized by the Convention

cannot be conditioned on the judgment of the majority and its compatibility with the objectives

Advisory Opinion OC-2/82, supra, para. 29, and Advisory Opinion OC-26/20, supra, para. 53.

Cf. Advisory Opinion OC-2/82, supra, para. 33, and Advisory Opinion OC-26/20, supra, para. 53.

Advisory Opinion OC-26/20, supra, para. 53.

Inter-American Democratic Charter, article 3.

Cf. Case of Gelman v. Uruguay, supra, para. 239.

of public opinion, since that would remove all effectiveness from the Convention and

international human rights treaties.

71. Second, Article 3 of the Inter-American Democratic Charter establishes access to power

and its exercise—subject to the rule of law—as a constitutive element of representative

democracy. In a representative democracy, the exercise of power must be subject to rules set

in advance and of which citizens are informed beforehand in order to avoid arbitrariness. This

is precisely the meaning of the concept of the rule of law.

To that extent, to protect

minorities, the democratic process requires certain rules that limit the power of the majority

as expressed at the polls. Therefore, those who are temporarily exercising political power

cannot be allowed to make changes without limit to the rules on access to the exercise of

power. Identifying popular sovereignty with the majority opinion as expressed at the polls is

not enough to classify a system as democratic. True democratic systems respect minorities

and the institutionalization of the exercise of political power, which is subject to legal limits

and a set of controls.

72. The Democratic Charter, Article 23 of the American Convention, and Article XX of the

American Declaration all establish an obligation to hold regular elections. In this regard, the

Court has indicated that holding elections to choose the representatives of the people is a

cornerstone of representative democracy.

This obligation to hold regular elections indirectly

implies that the terms of office of the Presidency of the Republic must have a fixed period.

Presidents cannot be elected for indefinite terms. This Court highlights that the majority of

the States Parties to the Convention include time limitations on the President’s term.

73. This prohibition on indefinite terms in office aims to prevent people who hold popularly-

elected office from keeping themselves in power. In this regard, the Court emphasizes that

representative democracy is characterized by the fact that the people exercise power through

their representatives as established by the Constitution, who are chosen through universal

elections. When a person can hold a public office perpetually, there is a risk that the people

will cease to be duly represented by their elected leaders, and that the system of government

will come to resemble an autocracy more than a democracy. This can happen even with regular

elections and limits on term lengths.

74. In this regard, the States in the region declared in the 1959 Declaration of Santiago that

“Perpetuation in power, or the exercise of power without a fixed term and with the manifest

In this sense, the Inter-American Juridical Committee has emphasized that “there is a vital link between the

effective exercise of representative democracy and the rule of law which is expressed concretely in the observance

of all the essential elements of representative democracy and the fundamental components of the exercise of same.

Therefore democracy does not consist only in electoral processes, but also in the legitimate exercise of power within

the framework of the rule of law, which includes respect for the essential elements, components and attributes of

democracy [...].” Inter-American Juridical Committee. Essential and fundamental elements of representative

democracy and their relation to collective action within the framework of the Inter-American Democratic Charter,

Resolution CJI/RES. 159 (LXXV-O/09) of August 12, 2009, Resolution 4.

Cf. Mutatis mutandis, Case of Castañeda Gutman v. Mexico, supra, para. 147.

See, for example, Constitution of the Argentine Nation, Article 90; Political Constitution of the Plurinational State

of Bolivia, article 169; Political Constitution of the Federative Republic of Brazil, article 82; Political Constitution of the

Republic of Chile, article 25; Political Constitution of the Republic of Colombia, article 190; Political Constitution of the

Republic of Costa Rica, article 134; Political Constitution of the Republic of Ecuador, article 144; Political Constitution

of the Republic of El Salvador, article 154; Political Constitution of the United Mexican States, article 83; Political

Constitution of the Republic of Guatemala, article 184; Political Constitution of the Republic of Nicaragua, article 148;

Political Constitution of the Republic of Panama, article 177; Constitution of the Republic of Paraguay, article 229;

Political Constitution of the Republic of Peru, article 112; Political Constitution of the Dominican Republic, article 124;

Political Constitution of the Eastern Republic of Uruguay, article 152, and Political Constitution of the Bolivarian

Republic of Venezuela, article 230.

intent of perpetuation, is incompatible with the effective exercise of democracy.”

Regarding

this Declaration, the Inter-American Juridical Committee has indicated that it “enunciated

some of the essential attributes of Democracy that are fully in effect and should be taken into

account along with essential elements and fundamental components spelled out in the Inter-

American Democratic Charter.”

75. Consequently, this Court finds that it is possible to conclude from the obligation to hold

periodic elections, together with the provisions of the Declaration of Santiago, that the

principles of representative democracy on which the inter-American system is based include

the obligation to prevent a person from remaining perpetually in power.

76. Additionally, the Court notes that the regularity of the elections also has the aim of

ensuring that different political parties or ideological currents can access power. On this point,

the Inter-American Democratic Charter establishes that another of the elements of

representative democracy is the “the plural regimen of parties and political organizations.”

In this sense, this Court emphasizes that political groups and parties play an essential role in

democratic development.

77. Political pluralism is fostered by the American Convention where it establishes the right

of all citizens to be elected and to have access—under general conditions of equality—to public

service in their country, freedom of thought and expression, the right to assembly, the right

of association, and the obligation to guarantee rights without discrimination. The Court has

established that these rights make democracy possible.

In this sense, the Inter-American

Democratic Charter establishes that “Representative democracy is strengthened and

deepened by permanent, ethical, and responsible participation of the citizenry within a legal

framework conforming to the respective constitutional order.”

Similarly, the Declaration of

Viña del Mar stated that:

Democratic governance entails the representation and participation of all the inhabitants

of our States, regardless of origin, race, religion, or sex, with special consideration to

indigenous populations, as this affirms the legitimacy of political democracy. This means

recognizing the contribution of majorities and minorities to the improvement of our

democratic models. Making these requirements compatible with respect for the principle

of equality between all men and women who inhabit Ibero-America is a challenge for our

societies.

78. A democratic system means that the person with the most votes takes popularly-elected

office.

However, the right of minorities to propose alternative ideas and projects—as well as

opportunities for them to be elected—must always be guaranteed. In this regard, political

pluralism entails an obligation to guarantee rotation of power—that is, that a governance

platform can be replaced by a different one once it has obtained the necessary electoral

Minutes of the Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile, August 12 to 18, 1959.

Declaration of Santiago, declarative point 3.

Inter-American Juridical Committee CJI/RES. 159 (LXXV-O/09), supra, Resolution 3.

Inter-American Democratic Charter, article 3.

Sixth Ibero-American Conference of Heads of State and Governments: Declaration of Viña del Mar, November

10 and 11, 1996, para. 24.

Cf. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of

August 6, 2008. Series C No. 184, para. 140,

Cf. Inter-American Democratic Charter, article 2.

Declaration of Viña del Mar, supra, para. 19.

This can be through direct or indirect elections.

majority. There must be a real and effective possibility that different political movements and

their candidates can win popular support and replace the ruling party.

79. On the other hand, Articles 3 and 4 of the Inter-American Democratic Charter emphasize

that in democracies, power must be accessed and exercised subject to and under the rule of

law. Democratic life is only possible if all parties respect the limits imposed by law that enable

the very existence of democracy, such as limits on the length of presidential terms. In this

sense, full respect for the rule of law means that changing the rules on access to power in a

way that benefits the person in power and puts political minorities at a disadvantage is not

something that can be done by majorities or their representatives (supra para. 70). In this

way, authoritarian governments are prevented from staying in power indefinitely by changing

the rules of the democratic game and thereby eroding the protection of human rights.

80. Lastly, article 3 of the Inter-American Democratic Charter places the separation and

independence of powers among the constitutive elements of a democracy. The separation of

State powers into different branches and organs is linked closely with the aim of preserving

related freedoms, with the understanding that concentration of power leads to tyranny and

oppression. At the same time, the separation of State powers allows for the efficient fulfillment

of the various aims entrusted to the State.

81. Therefore, the separation and independence of powers limits the scope of power

exercised by each State body, thus preventing them from unduly interfering in the activities

of the other bodies and guaranteeing the effective enjoyment of greater freedom.

82. However, the separation and independence of powers assumes the existence of a system

of controls and oversight to constantly regulate the balance of powers. This so-called “checks

and balances” model does not assume that harmony between the bodies playing the classic

roles of branches of government will be a spontaneous consequence of adequate and

functional delimitation of their powers and the absence of interference in their exercise thereof.

On the contrary, the balance of powers is continuously struck and reestablished through the

political oversight performed by some bodies of the tasks corresponding to others and the

collaborative relationships between the different branches government in the exercise of their

powers.

83. All the foregoing criteria are closely related. Indeed, the separation of powers, political

pluralism, and holding of regular elections also function as guarantees of effective respect of

fundamental rights and freedoms.

84. Therefore, this Court finds that the principles of representative democracy include, in

addition to regular elections and political pluralism, the obligation to prevent a person from

remaining in power and to guarantee the rotation of power and the separation of powers.

85. The measures that the State can take to prevent a person from holding onto power and

to guarantee the separation of powers and the rotation of power are varied and will depend

on the political system of the particular country.

86. The inter-American system, the American Declaration, and the Convention do not impose

a particular political system on States,

nor a specific modality of limitations on exercising

political rights.

States can establish their political systems and regulate political rights

according to their historical, political, social and cultural needs, which may vary from

OAS Charter, Article 3.

Case of Castañeda Gutman v. Mexico, supra, para. 162.

one country to another and even within one country, at different historical moments.

However, the regulations that States implement must be compatible with the American

Convention and, therefore, with the principles of representative democracy that underpin the

inter-American system, including those derived from the Inter-American Democratic Charter.

87. This Court notes that most of the States Parties to the American Convention have

adopted a presidential political system.

In this type of system, the duration of the President's

mandate is not conditional on support from another branch of government but based rather

on the length of time established by law for the term.

88. Although the powers of the presidents vary in each State, certain commonalities have

been observed in constitutional executive systems. In general, the president is the head of

the executive branch and acts as the head of State and head of government.

The president

is therefore in charge of appointing and removing the ministers and those leading the main

government agencies.

In fourteen OAS member States, the President is also the commander-

in-chief of the armed forces.

89. Additionally, the Court observes that the checks and balances system that most OAS

member States have implemented grants the President certain powers that influence how

Case of Castañeda Gutman v. Mexico, supra, para. 166.

Cf. Comments from: the Academia Boliviana de Estudios Constitucionales; Ilka Treminio and Juan Manuel Muñoz,

from the Centro de Investigación y Estudios Políticos (CIEP) of the Universidad de Costa Rica; the Clínica de Direitos

Humanos e Direito Ambiental of the Universidade do Estado do Amazonas e Grupo de Pesquisa Direitos Humanos na

Amazônia; the Corporación Centro de Interés Público y Justicia (CIPJUS); the Fundación para el Debido Proceso (DPLF);

the Instituto de Gobernabilidad of Peru (INGOPE); the Núcleo de Estudios en Derechos Humanos (NESIDH) and the

Centro de Estudios de Constitucional (CCONS) of the Universidad de Flores and Universidad Católica de Córdoba; the

Universidad Libre Facultad de Derecho in Bogotá, and Edier Esteban Manco Pineda.

In this sense, this advisory opinion does not address parliamentary systems.

This is established explicitly in, for example, the constitutions of Argentina, Chile, Colombia, Ecuador, Guatemala,

Nicaragua, Peru, the Dominican Republic and Venezuela. Cf. Constitution of the Argentine Nation, article 99; Political

Constitution of the Republic of Chile, article 24; Political Constitution of the Republic of Colombia, article 115; Political

Constitution of the Republic of Ecuador, article 141; Constitution of the United States of America, article 2 section I.1;

Political Constitution of the Republic of Guatemala, article 182; Political Constitution of the Republic of Nicaragua,

article 144; Political Constitution of the Republic of Peru, article 110; Political Constitution of the Dominican Republic,

article 122, and Political Constitution of the Bolivarian Republic of Venezuela, article 226.

See, for example, Constitution of the Argentine Nation, article 99.7; Political Constitution of the Plurinational State

of Bolivia, articles 172.15, 172.21 and 172.23; Political Constitution of the Federative Republic of Brazil, articles 84.14,

84.15 and 84.17; Political Constitution of the Republic of Chile, articles 32.7 and 32.9 to 32.12 and 32.18; Political

Constitution of the Republic of Colombia, articles 189.1 and 189.13; Political Constitution of the Republic of Costa

Rica, articles 140.1, 140.2 147.4; Political Constitution of the Republic of Ecuador, article 147.9; Political Constitution

of the Republic of El Salvador, article 162; Constitution of the United States of America, article 2 section II.2; Political

Constitution of the United Mexican States, article 89 (II); Political Constitution of the Republic of Guatemala, article

183 (s); Political Constitution of the Republic of Honduras, article 245.5; Political Constitution of the Republic of

Nicaragua, article 150.5; Political Constitution of the Republic of Panama, article 184; Political Constitution of the

Republic of Paraguay, article 238.6; Political Constitution of the Dominican Republic, article 128.2, and Political

Constitution of the Bolivarian Republic of Venezuela, articles 236.3 and 236.16.

Such is the case in, for example, Argentina, Brazil, Chile, Colombia, Ecuador, the United States, Guatemala,

Honduras, Mexico, Nicaragua, Paraguay, Peru, the Dominican Republic, Uruguay and Venezuela. Cf. Constitution of

the Argentine Nation, article 99.12; Political Constitution of the Federative Republic of Brazil, article 142; Political

Constitution of the Republic of Chile, article 32.18; Political Constitution of the Republic of Colombia, article 189.3;

Political Constitution of the Republic of Ecuador, article 147.16; Constitution of the United States of America, article

2 section II.1; Political Constitution of the Republic of Guatemala, article 182; Political Constitution of the Republic of

Honduras, article 245.16; Political Constitution of the United Mexican States, article 89 (VI); Political Constitution of

the Republic of Nicaragua, article 144; Political Constitution of the Republic of Paraguay, article 238.9; Political

Constitution of the Republic of Peru, article 167; Political Constitution of the Dominican Republic, article 128; Political

Constitution of the Eastern Republic of Uruguay, article 168.2, and Political Constitution of the Bolivarian Republic of

Venezuela, article 236.5.

other branches of government function. In particular, Presidents often have the power to

participate in the lawmaking process

and can call special sessions of the legislative branch.

In regard to how they relate to the judiciary, in six OAS Member States, the president appoints

the judges of the Supreme Court, for subsequent approval by the legislative branch.

In three

States Parties to the American Convention, the President can also appoint certain judges.

90. In view of the broad powers that presidents have in presidential systems and the

importance of ensuring that a person does not hold onto power, the legal systems of most

OAS member States place limits on presidential reelection in presidential systems. Thus,

presidential reelection is prohibited in Colombia,

Guatemala,

Mexico,

and Paraguay;

100

This is the case in, for example, Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala,

Honduras, Mexico, Nicaragua, Paraguay, Peru, the Dominican Republic, Uruguay and Venezuela. Cf. Constitution of

the Argentine Nation, articles 99.3 and 77; Political Constitution of the Federative Republic of Brazil, article 61; Political

Constitution of the Republic of Chile, article 32.1; Political Constitution of the Republic of Colombia, article 154; Political

Constitution of the Republic of Costa Rica, article 123; Political Constitution of the Republic of Ecuador, article 147.11;

Political Constitution of the Republic of El Salvador, article 133.2; Political Constitution of the Republic of Guatemala,

article 183 (g); Political Constitution of the Republic of Honduras, article 245.9; Political Constitution of the United

Mexican States, article 71 (I); Political Constitution of the Republic of Nicaragua, article 140.2; Political Constitution

of the Republic of Paraguay, article 238.12; Political Constitution of the Republic of Peru, article 107; Political

Constitution of the Dominican Republic, article 96.2; Political Constitution of the Eastern Republic of Uruguay, article

168.7, and Political Constitution of the Bolivarian Republic of Venezuela, article 204.1.

This is the case in, for example, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala,

Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic, Uruguay and Venezuela. Cf.

Constitution of the Argentine Nation, article 99.9; Political Constitution of the Plurinational State of Bolivia, article

172.6; Political Constitution of the Federative Republic of Brazil, article 57.6; Political Constitution of the Republic of

Chile, article 32.2; Political Constitution of the Republic of Colombia, article 138; Political Constitution of the Republic

of Costa Rica, article 118; Political Constitution of the Republic of Ecuador, article 147.15; Political Constitution of the

Republic of Guatemala, article 183 (l); Political Constitution of the Republic of Honduras, article 245.6; Political

Constitution of the United Mexican States, article 89 (XI); Political Constitution of the Republic of Nicaragua, article

150.6; Political Constitution of the Republic of Panama, article 183.4; Political Constitution of the Republic of Paraguay,

article 238.11; Political Constitution of the Republic of Peru, article 118.6; Political Constitution of the Dominican

Republic, article 89; Political Constitution of the Eastern Republic of Uruguay, article 168.8, and Political Constitution

of the Bolivarian Republic of Venezuela, article 236.9.

This is the case of, for example, Argentina, Brazil, Chile, the United States, Nicaragua, and Mexico. Cf. Constitution

of the Argentine Nation, article 99.4; Political Constitution of the Federative Republic of Brazil, article 84.14; Political

Constitution of the Republic of Chile, article 78; Constitution of the United States of America, article 2 section II;

Political Constitution of the Republic of Nicaragua, article 150.14, and Political Constitution of the United Mexican

States, article 89 (XVIII).

This is the case in, for example, Argentina, Brazil, and Chile. Cf. Constitution of the Argentine Nation, article 99.4;

Political Constitution of the Federative Republic of Brazil, articles 84.14 and 84.16; and Political Constitution of the

Republic of Chile, article 32.12.

Article 197 of the Constitution of Colombia, amended in 2015, establishes that “A citizen who has held the

presidency in any capacity may not be elected President of the Republic. This prohibition does not apply to the Vice

President when they have served for fewer than three months, continuously or discontinuously, during the four-year

term. The ban on reelection can only be amended or repealed by means of a popular referendum or constituent

assembly.”

Article 187 of the Constitution of Guatemala establishes that “[…] persons who have held the office of President of

the Republic for any length time by popular election, or who have held it for more than two years in substitution of

the incumbent, may not under any circumstances hold it again.”

Article 83 of the Constitution of Mexico establishes that “[…] The citizen who has held the position of President of

the Republic, having been popularly elected or having held the office of Federal executive on an interim, substitute, or

provisional basis shall under no circumstances or for any reason able to hold the office again.”

100

Article 229 of the Constitution of Paraguay establishes that “the President of the Republic and the Vice President shall

hold office for five years, non-extendable, starting on the 15th of August following the elections. Under no

circumstances can they be reelected. The Vice President may only be elected President for the following term if he/she

resigns six months prior to the general elections. Anyone who has served as president for more than 12 months may

not be elected Vice President of the Republic.”

is limited to a single additional term in Ecuador,

101

the United States,

102

and the Dominican

Republic;

103

reelection is limited to one consecutive term in Argentina,

104

and allowed only non-

consecutively in Brazil,

105

Chile,

106

Costa Rica,

107

El Salvador,

108

Panama,

109

Peru,

110

and

Uruguay.

111

COMPATIBILITY OF PROHIBITING INDEFINITE PRESIDENTIAL RE-ELECTION WITH

THE AMERICAN CONVENTION

101

Article 114 of the Constitution of Ecuador establishes that “popularly-elected authorities may be reelected only once,

consecutively or not, for the same position. Popularly-elected authorities who run for a different office must resign

from the one they hold."

102

Amendment XXII of February 27, 1951 establishes: “1. No person shall be elected to the office of the President more

than twice, and no person who has held the office of President, or acted as President for more than two years of a

term to which some other person was elected President shall be elected to the office of the President more than once.

But this Article shall not apply to any person holding the office of President when this Article was proposed by the

Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during

the term within which this Article becomes operative from holding the office of President or acting as President during

the remainder of such term. Constitution of the United States of America.

103

Article 124 of the Constitution of the Dominican Republic establishes that “the Executive Power is exercised by the

President of the Republic, who shall be elected every four years by direct vote. The President of the Republic may opt

for a second consecutive constitutional term but may never run again or for the Vice-Presidency of the Republic.”

104

Article 90 of the Constitution of the Argentine Republic establishes that “the President and Vice President shall serve

a term of four years and may be re-elected or succeed each other for a single consecutive period. If they have been

reelected or have succeeded each other, they cannot be elected to either of the offices, except after an interval of one

term.”

105

Article 82 of the Brazilian Constitution establishes that "The term of the President of the Republic shall be five

years, with no reelection for the following term, and will begin on January 1 of the year following his election."

106

Article 25 of the Constitution of Chile establishes that “to be elected President of the Republic, one must have

Chilean nationality in accordance with the provisions of parts 1 or 2 of article 10; be thirty-five years old; and possess

the other qualities necessary to be a citizen with the right to vote. The President of the Republic shall exercise the

authorities of the office for a term of four years and may not be re-elected for the following term.”

107

Article 132 of the Constitution of Costa Rica establishes that “the following may not be elected President or Vice

President: 1) Whoever has served in the Presidency in any period within the eight years prior to the term for which

the election will take place, nor the Vice President or whoever replaces them having served during the majority of any

of the terms included in those eight years.”

108

Article 152, section 1 of the Constitution of El Salvador establishes that “those who have held the Presidency of

the Republic for more than six months, consecutive or not, during the immediately preceding term, or within the last

six months prior to the start of the presidential term” cannot stand as candidates for President of the Republic.

109

Article 178 of the Political Constitution of the Republic of Panama establishes that "citizens who have been elected

President and Vice President of the Republic may not be re-elected for the same position in the two immediately-

following presidential terms."

110

Article 112 of the Constitution of Peru establishes that “the presidential term is five years, with no immediate

reelection. After at least on more constitutional term, the former president can run again, subject to the same

conditions.”

111

Article 152 of the Constitution of Uruguay establishes that “the President and Vice President shall serve for five

years in their offices, and in order to hold them for another term, five years must have elapsed from the end of the

last term. This provision covers the President with respect to the Vice Presidency and not the Vice President with

respect to the Presidency, save for the exceptions set forth in the following paragraphs. The Vice President and citizen

who served as President due to a definitive vacancy for more than one year cannot be elected to those offices until

the passage of the same amount of time established in the first paragraph. Neither can the Vice President or the

person who served as President during the term including the three months prior to the election be elected President.

91. The Court notes that two main issues emerge from the first question posed by Colombia:

A) if presidential reelection without term limits is an autonomous human right, and B) if

prohibiting it amounts to a restriction of political rights that violates the American Convention.

Presidential reelection without term limits as an autonomous human right

92. In the framework of the inter-American system, the Court notes that, from the literal

meaning of the relevant provisions of the Convention and the American Declaration,

“presidential reelection without term limits” is not expressly protected as an autonomous right.

Additionally, the Court notes that there was no discussion regarding presidential reelection in

the preparatory work for the American Convention and Declaration.

112

93. The Court has indicated that, when exercising its interpretive function, it resorts to

international human rights law by taking into account relevant sources of international law.

113

To this extent, it has specified that the corpus iuris of international human rights law is

comprised of both a series of rules expressly established both in international treaties and by

customary international law,

114

along with the general principles of law.

94. Regarding international treaties, it is noted that there is no mention of presidential

reelection without term limits in the OAS Charter or the Inter-American Democratic Charter,

or in any human rights treaty in the region. There is also no explicit reference to presidential

reelection without term limits as a human right in international human rights treaties in the

universal,

115

European,

116

or African

117

systems.

95. The right expressly derived from the American Convention and the International

Covenant on Civil and Political Rights is the right to vote and be elected.

118

Similarly, the

European Court of Human Rights and the African Court of Human Rights have further

112

Cf. Ninth International Conference of American States of 1948. Summary Minutes of the Sixth Session of the Sixth

Committee of the Ninth International American Conference on the approval of Article XX of the American Declaration,

pgs. 588 to 590, and Minutes and Documents of the Inter-American Specialized Conference on Human Rights

(OEA/Ser.K/XVI/1.2), pgs. 254 to 258.

113

Cfr. Rights and guarantees of children in the context of migration and/or in need of international protection, para.

Advisory Opinion OC-21/14 dated August 19, 2014. Series A No. 21, para. 60, and Advisory Opinion OC-26/20, supra,

para. 28.

114

Cf. Advisory Opinion OC-21/14, supra, para. 60, and Advisory Opinion OC-26/20, supra, para. 28.

115

Article 25 of the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”) establishes as

follows: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2

and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely

chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and

equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To

have access, on general terms of equality, to public service in his country.” For its part, Article 21 of the Universal

Declaration of Human Rights establishes that “Everyone has the right to take part in the government of his country,

directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his

country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in

periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by

equivalent free voting procedures.”

116

The third Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms

recognizes in its article 3 that “The High Contracting Parties undertake to hold free elections at reasonable intervals

by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of

the legislature.”

117

The African Charter on Human and Peoples' Rights, establishes in its article 13 that “Every citizen shall have the

right to participate freely in the government of his country, either directly or through freely chosen representatives in

accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of

the country [...].”

118

ICCPR, article 25;

understood that the right to run for elective office is also derived from the European

Convention and the African Charter, respectively.

119

96. In this sense, international human rights treaties do not recognize the existence of an

autonomous right to be reelected to the office of the Presidency.

97. Additionally, with respect to regional customary international law, it must be analyzed

whether there is evidence of a practice generally accepted as law. Thus, in its jurisprudence,

the Court has resorted to the analysis of the legislation and internal jurisprudence of OAS

member States to establish State practice.

120

98. In this regard, this Court reiterates that the majority of the OAS member States place

restrictions on presidential reelection (supra para. 90). Only four States lack limits on the

number and frequency of presidential reelections, thereby allowing presidential reelection

without term limits (Bolivia,

121

Honduras,

122

Nicaragua,

123

and Venezuela

124

). Of these States,

court rulings in three cases arrived at the interpretation that limiting presidential reelection—

as initially established in the respective constitutions—amounted to discriminatory and

119

See, for example, ECHR, Case of Podkolzina v. Latvia (Application No. 46726/99). Judgment of the Fourth Section

of April 9, 2002, para. 35, and African Court on Human and Peoples’ Rights, Tanganyika Law Society and the Legal and

Human Rights Center v. Tanzania (Application No. 009/2011) and Reverend Christopher R. Mtikila v. Tanzania

(Application No. 011/2011). Judgment of June 14, 2013.

120

Cf. Advisory Opinion OC-26/20, paras. 62 to 63.

121

Regarding reelection to the posts of Presidency and Vice-presidency of the Republic, Article 168 of the Bolivian

Constitution established that “the term of office is five years […] and they can be reelected only once consecutively."

Likewise, article 52.III of the Electoral Regime Law established that the President or Vice President can be reelected

"for a single consecutive term." These limitations were declared unconstitutional by the Plurinational Constitutional

Court of Bolivia in its judgment No. 0084-2017 dated November 28, 2017.

122

In a judgment of April 22, 2015, the Supreme Court of Justice of Honduras declared articles 42.5 and 239 of the

Constitution inapplicable and found article 330 of the Penal Code unconstitutional. Article 42.5 of the Constitution of

Honduras stated that “[t]he status of citizen is lost […] upon inciting, promoting, or supporting the continuation in

power or reelection of the President of the Republic.” Article 239 also established that “citizens who have held the

office of head of the Executive Branch may not be President or Vice President of the Republic. Anyone who violates

this provision or proposes its reform and all those who support it directly or indirectly shall be immediately removed

from their respective offices and disqualified for ten (10) years from holding any public office.” For its part, article

330 of the Honduran Penal Code established that “anyone who exercises the Presidency of the Republic in any

capacity, promotes or executes acts that violate the constitutional article that prohibits them from exercising it again

or serving in that position again under any title shall be punished with a prison term of six to ten years. Those who

directly support this person or propose amending the article shall incur the same penalty. When the perpetrators of

these crimes are public officials, they shall also be punished with a total ban on public service for ten years, counting

from the date of the violation or their attempt to amend the article.”

123

Article 147 of the Political Constitution of Nicaragua stated the following: “the following may not stand for President

or Vice President of the Republic: a) anyone exercising or who has exercised the Presidency of the Republic at any point

during the term preceding the election held for the following term, nor anyone who has exercised it for two presidential

terms; b) the Vice President of the Republic or the person called to replace them, if the person has held the office or

that of President during the twelve months prior to the date on which the election is held for the following term.”

Nicaragua’s Constitutional Chamber of the Supreme Court of Justice found this article inapplicable in Judgment 504 of

October 19, 2009. For its part, the Nicaraguan Supreme Court of Justice granted erga omnes effects to the inapplicability

of the limits set in Article 147 of the Constitution on presidential reelection through judgment 06 of September 30,

2010.

124

Article 230 of the Constitution of Venezuela established that “the presidential term is six years. The President

of the Republic can be reelected immediately and only once for another term.” In 2009, the article was amended by

the National Assembly, eliminating the time limitation, worded as follows: “The presidential term is six years. The

President of the Republic can be reelected.”

disproportionate treatment that violated the rights to elect and be elected, and should

therefore be eliminated.

125

99. Therefore, although constitutional regulation of presidential reelection in OAS member

States is mixed, currently only four of them allow “presidential reelection without term limits.”

Consequently, there is not enough of a State practice at a regional level with regard to the

alleged human right to presidential reelection without term limits. In this sense, there is also

no evidence that such a practice is considered a right. On the contrary, the States of the region

have assumed the obligation to guarantee that their system of government is a representative

democracy, and one of the principles of this system of government is to guarantee rotation of

power and prevent a person from holding onto it (supra para. 75). Therefore, the Court rules

out the customary recognition of presidential reelection without term limits as an autonomous

right. Likewise, in the absence of a basis in international and domestic law, its recognition as

a general principle of law must also be ruled out.

100. In this regard, the Court highlights that in 2018, in response to a request from the

Secretary General of the OAS on this point, the European Commission for Democracy through

Law (hereinafter the “Venice Commission”

126

) analyzed presidential reelection and concluded

that "Term-limit clauses for presidents are found in constitution chapters referring to the

institution of the presidency, not in the bills of rights."

127

In this regard, it highlighted that:

Human rights may be understood as recognized claims: “to have a right is to have a claim

to something and against someone, the recognition of which is called for by legal rules or,

in the case of moral rights, by the principle of an enlightened conscience.” Rights require

social recognition as such. In a democratic state, this recognition must be institutionalized

and acknowledged by the state. Without such recognition, human rights may be morally

justifiable, but not enforceable.

128

101. Taking the foregoing into account, and after analyzing existing national and international

legislation, the Venice Commission concluded that “there is no specific and distinct human

right to reelection. The possibility to stand for office for another period foreseen by the law is

a modality of, or a restriction to, the right to political participation and, specifically, to stand

for office.”

129

102. In view of the foregoing, this Court concludes that “presidential reelection without term

limits” does not constitute an autonomous right protected by the American Convention or by

the corpus iuris of international human rights law.

130

Presidential reelection and its prohibition

stem from the constitutional regulations established by States regarding the right to be

elected, in accordance with their historical, political, social, and cultural needs.

131

Therefore,

125

Cf. Constitutional Chamber of the Supreme Court of Justice of Nicaragua. Resolution No. 504 of October 19, 2009,

pgs. 20 to 23; Plurinational Constitutional Court of Bolivia. Resolution No. 0084-2017 of November 28, 2017, pgs. 75

and 76, and Supreme Court of Justice of Honduras. Judgment of April 22, 2015, “whereas” paragraphs 18 and 24 to

26.

126

The Venice Commission is an advisory body of the Council of Europe, comprised of independent experts in the field

of constitutional law.

127

European Commission for Democracy through Law. Report on Term Limits. Part I - Presidents. Adopted by the

Venice Commission at its 114th Plenary Session, Venice, 16-17 March 2018, para. 78.

128

European Commission for Democracy through Law. Report on Term Limits, supra, para. 79.

129

European Commission for Democracy through Law. Report on Term Limits, supra, para. 117.

130

European Commission for Democracy through Law. Report on Term Limits, supra, para. 117.

131

Cf. Mutatis mutandis, Case of Castañeda Gutman v. Mexico, supra, para. 165, and ECHR, Case of Zdanoka v.

Latvia. Judgment of March 16, 2006 [Grand Chamber], para. 103.

it must be examined whether the prohibition is a restriction on political rights, and if so,

whether it is compatible with the American Convention and the American Declaration.

Compatibility of prohibition on presidential reelection without term limits

with political rights

103. The first paragraph of Article 23 of the Convention recognizes the rights of all citizens:

(a) To take part in the conduct of public affairs, directly or through freely chosen

representatives; (b) To vote and to be elected at genuine periodic elections which shall be by

universal and equal suffrage and shall be held by secret ballot, guaranteeing the free

expression of the will of the electors; and (c) To have access, on general terms of equality, to

public service in his country.

132

Similarly, the American Declaration recognizes the right to

“participate in the government of his country, directly or through his representatives, and to

take part in popular elections, which shall be by secret ballot, and shall be honest, periodic

and free.” This Court has therefore found that the rights recognized have an individual and

collective dimension, as they protect both those who stand as candidates and those who vote

for them.

133

104. The Court notes that the prohibition on presidential reelection without term limits

constitutes a restriction on the right to be elected. In this sense, the Court recalls that political

rights are not absolute. Their exercise may be subject to regulations or restrictions. However,

the power to regulate or restrict rights is not discretionary. Rather, it is limited by international

law, which requires compliance with certain requirements, and if they are not respected, the

restriction is illegitimate and in violation of the American Convention.

134

In this sense, Article

23, paragraph 2 of the Convention establishes that:

The law may regulate the exercise of the rights and opportunities referred to in the

preceding paragraph only on the basis of age, nationality, residence, language,

education, civil and mental capacity, or sentencing by a competent court in criminal

proceedings.

105. This Court has found that in establishing a list of possible grounds for limiting or

regulating political rights, Article 23(2) of the Convention aims to set clear criteria and specific

regimes under which these rights may be limited. The goal of this is the ensure limiting political

rights is not left up to the discretion or will of the current ruler, so as ensure the political

opposition can operate without undue restrictions.

135

106. However, this Court notes that Article 23(2) establishes two acceptable categories of

restrictions. The first is in regard to general restrictions that the law may establish (age,

nationality, residence, language, education, civil or mental capacity), while the second refers

to restrictions on political rights imposed by means of a sanction on a specific person

(conviction, by a competent judge, in criminal proceedings). According to the case law of this

Court, interpretation of the term "exclusively" found in Article 23(2) depends on whether it

involves restrictions on general political rights (first category) or an individual’s political rights

(second category).

132

Cf. Case of Yatama v. Nicaragua, supra, paras. 195 to 200, and Case of Petro Urrego v. Colombia, supra, para.

92.

133

Cf. Case of Yatama v. Nicaragua, supra, paras. 195 to 200, and Case of Petro Urrego v. Colombia, supra, para.

92.

134

Cf. Case of Yatama v. Nicaragua, supra, para. 195, and Case of Petro Urrego v. Colombia, supra, para. 94.

135

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 155, and Case of Petro Urrego v. Colombia, supra, para.

98.

107. On the one hand, in the cases López Mendoza v. Venezuela and Petro Urrego v.

Colombia, the Court was clear in establishing that, in cases of restrictions on political rights

via sanction, the term “exclusively” implies that these restrictions can only be implemented

following a guilty verdict handed down by a competent judge in a criminal proceeding.

Therefore, the sanctions of dismissal and disqualification of democratically elected public

officials applied by an administrative disciplinary authority are prohibited by Article 23(2) of

the Convention, in terms of both its wording and its object and purpose.

136

108. On the other hand, in cases related to general restrictions on political rights, the Court

has found when interpreting the term “exclusively” in Article 23(2) that it is not possible to

set aside paragraph 1 of the article to interpret paragraph 2 in isolation, nor is it possible to

ignore the other provisions of the Convention or the basic principles that inspire it and are

used for its interpretation.

137

109. In this sense, Article 23 of the Convention entails certain obligations for the State. From

the moment Article 23(1) establishes that the right to participate in the conduct of public

affairs can be exercised directly or through freely chosen representatives, States have a

positive obligation to take certain actions, engage in conduct, or adopt measures deriving from

the obligation to guarantee the free and full exercise of human rights of the persons subject

to their jurisdiction (Article 1(1) of the Convention) and from the general obligation to adopt

measures in domestic law (Article 2 of the Convention).

138

110. The positive obligation is to devise a system under which representatives can be elected

to conduct public affairs. Indeed, for political rights to be exercised, the law must establish

regulations that go beyond those having to do with limits on restricting those rights established

in Article 23(2) of the Convention. States must organize electoral systems and establish a

complex series of conditions and formal standards to ensure citizens are able to exercise of

the right to vote and be voted for.

139

111. Consequently, not only does the State have the general obligation established in Article

1(1) of the Convention to guarantee the exercise of rights, it must follow specific guidelines

in complying with this obligation. According to the American Convention, the electoral system

that States establish must make it possible to hold genuine periodic elections which shall be

by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free

expression of the will of the voters. The State therefore has a specific mandate regarding the

modality it must choose to comply with its general obligation to "guarantee" the exercise of

the rights established in Article 1 of the Convention, compliance that, as stated in general by

article 1(1), must not be discriminatory.

140

In this sense, for example, the Court has concluded

that in order to guarantee political rights, States must regulate organizational or institutional

aspects of electoral processes, amounting to the imposition of limitations on political rights

not expressly included in Article 23(2).

141

112. By virtue of the foregoing, the Court has found that it is not possible to ensure an

electoral system can function by applying solely the limitations of Article 23, paragraph 2, of

136

Cf. Case of López Mendoza v. Venezuela. Merits, Reparations, and Costs. Judgment of September 1, 2011.

Series C No. 233, para. 107 to 109, and Case of Petro Urrego v. Colombia, supra, paras. 94 to 98.

137

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 153.

138

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 156.

139

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 157.

140

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 158.

141

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 159.

the American Convention.

142

The establishment and enforcement of general requirements to

exercise political rights does not constitute, per se, an undue restriction on political rights.

143

Therefore, just because restrictions on presidential reelection without term limits are not

explicitly included in Article 23(2) does not mean they run contrary to the Convention.

113. However, States’ power to regulate or restrict rights is not discretionary. It is limited by

international law, which requires compliance with certain requirements that, if not respected,

make the restriction illegitimate and contrary to the American Convention Pursuant to the

provisions of Article 29(a) in fine of said treaty, no provision of the Convention can be

interpreted in the sense of limiting rights to a greater extent than what it establishes.

144

this regard, it must be examined whether this limitation represents an undue restriction of the

human rights enshrined in the Convention.

145

114. Article 32(2) of the Convention establishes that, “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.” This Court has established in its case law that a right may be

restricted by States provided that the interference is not abusive or arbitrary. Therefore, it

must be established by law—formally and materially

146

—pursue a legitimate purpose, and

comply with the requirements of suitability, necessity and proportionality.

147

115. The first step in evaluating whether a restriction to a right established in the American

Convention is permitted under it is to examine whether the limiting measure meets the

requirement of legality. This means that the general conditions and circumstances that

authorize a restriction on the exercise of a specific human right must be clearly established by

law.

148

In this sense, to be in accordance with the Convention, limitations on presidential

reelection must be clearly established both formally and materially.

149

116. The second limit on any restriction involves the purpose of the restrictive measure: that

is, the cause invoked to justify the restriction must be allowed under the American Convention,

established in specific provisions that are included for certain rights (for example, protecting

public order or public health, set forth in articles 12(3), 13(2)(b), and 15, among others), or

142

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 161.

143

Cf. Case of Yatama v. Nicaragua, supra, para. 206, and Case of Castañeda Gutman v. Mexico, supra, para. 174.

144

Cf. Case of Castañeda Gutman v. Mexico, supra, para. 174.

145

Similarly, ECHR, Case of Gitonas et al. v. Greece. Judgment of the Chamber 18747/91; 19376/92; 19379/92

of July 1, 1997, para. 39, and Case of Hirst v. United Kingdom, (No. 2). Judgment of the Grand Chamber 74025/01

of October 6, 2005, para. 62.

146

Cf. Advisory Opinion OC-6/86, supra, paras. 35 and 37, and Case of Artavia Murillo et al. (In Vitro Fertilization)

v. Costa Rica. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 28, 2012. Series C No.

257, para. 273.

147

Cf. Case of Tristán Donoso v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of January

27, 2009. Series C No. 193. para. 56, and Case of Fernández Prieto and Tumbeiro v. Argentina. Argentina. Merits and

Reparations. Judgment of September 1, 2020. Series C No. 411, para. 105.

148

Article 30 of the American Convention establishes that “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.”

149

Cf. Advisory Opinion OC-6/86, supra, paras. 27 and 32, and Case of Castañeda Gutman v. Mexico. Preliminary

Objections, Merits, Reparations and Costs. Judgment of August 6, 2008. Series C No. 184, para. 176.

in norms that establish legitimate general purposes (for example, “the rights of others” or “the

just demands of the general welfare, in a democratic society,” both in Article 32).

150

117. Unlike other rights whose wording specifically establishes the legitimate purposes that

could justify the restrictions to a right, Article 23 of the Convention does not explicitly establish

the legitimate grounds or the permitted aims for which the law can restrict political rights.

Indeed, the article is limited to outlining certain aspects or reasons (civil or mental capacity,

age, among others) based on which the exercise of political rights can be regulated, but does

not explicitly determine the aims nor the specific restrictions that will necessarily have to be

imposed when designing an electoral system, such as residency requirements, electoral

districts, and others elements. However, the legitimate aims the restrictions must pursue

derive from the obligations arising from Article 23(1) of the Convention, to which reference

has been made above.

151

118. In this sense, this Court recalls that, according to Article 32(2) of the Convention, “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.” Within the context of the

Convention, the general welfare can be understood as a concept referring to the conditions of

social life that allow the members of society to achieve the highest degree of personal

development and the greatest effectiveness of democratic values. In this sense, organizing

social life in a way that strengthens the functioning of democratic institutions and preserves

and promotes the full realization of the rights of the human person can be considered an

imperative of the common good.

152

119. The Court considers that prohibiting presidential reelection without term limits has a

purpose in accordance with Article 32 of the Convention, as it seeks to guarantee

representative democracy by serving as a safeguard of the essential elements of democracy

established in Article 3 of the Inter-American Democratic Charter. In particular, the prohibition

on presidential reelection without term limits seeks to prevent a person from holding on to

power, and, in this way, to ensure political pluralism and rotation of power, while protecting

the system of checks and balances that guarantee the separation of powers (supra paras. 43

to 85). Since representative democracy is one of the principles on which the inter-American

system is founded, the measures taken to guarantee it have a legitimate purpose under the

Convention.

120. The third step is to assess whether the restriction is suitable to achieve its aim. In this

regard, the Court notes that, in view of how much power is concentrated in the presidency in

a presidential system, restricting the possibility of reelection without term limits is a suitable

means of ensuring that a person does not hold onto power, and thus that the fundamental

principles of a representative democracy are not affected (supra paras. 43 to 85).

121. Next, it must be evaluated whether the restriction is necessary, for which the existing

alternatives must be examined for securing the legitimate aim pursued, with their greater or

lesser harmfulness identified.

153

In this regard, this Court notes that it does not identify other

equally suitable measures to ensure that a person does not hold onto power, finding that with

150

Cf. Advisory Opinion OC-6/86, supra, paras. 27 and 32, and Case of Argüelles et al. v. Argentina. Preliminary

Objections, Merits, Reparations and Costs. Judgment of November 20, 2014. Series C No. 288, para. 226

151

Cf. Advisory Opinion OC-6/86, supra, paras. 27 and 32, and Case of Castañeda Gutman v. Mexico, supra,

para. 181.

152

The compulsory licensing of journalists. (Arts. 13 and 29 American Convention on Human Rights). Advisory

Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 66, and Advisory Opinion OC-6/86, supra, para. 61.

153

Cf. Case of Yatama v. Nicaragua, supra, para. 206, and Case of Usón Ramírez v. Venezuela. Preliminary

Objections, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, para. 72

this measure, the separation of powers, the plural regime of political parties and organizations,

and the rotation of political parties in the exercise of power are not affected. In the same

sense, the Venice Commission has pointed out that, in a State with a presidential or semi-

presidential system, “power tends to be concentrated on the President, while that of the

Legislature or the Judiciary is relatively weaker. Therefore, the regular change of regime

through the process of election is the very method to prevent too strong a concentration of

powers in the hands of the President.”

154

122. Finally, it must be evaluated whether the restriction is strictly proportional, such that the

sacrifice inherent in it is not exaggerated or excessive compared to its benefits.

155

In this

regard, this Court has indicated that the restriction must be proportional to the interest

justifying it and closely adhere to achieving the legitimate aim, interfering as little as possible

in the effective exercise of the right at stake.

156

Indeed, even if a restriction is established by

law is suitable and necessary, it must be determined whether it is strictly proportional.

123. In view of the questions posed, it is necessary to consider whether the advantages of

prohibiting indefinite presidential reelection for democratic rotation of power are proportional

as regards the right of the person holding the office of the presidency to be reelected, as well

as with respect to the right of other citizens to vote and to participate in the conduct of public

affairs through freely-elected representatives.

124. Regarding the right of the person holding the office of the presidency to be reelected,

this Court has already established that there is no autonomous right to reelection (supra para.

102). The right that is established in the American Convention is the right "to be elected at

genuine periodic elections which shall be by universal and equal suffrage and shall be held by

secret ballot, guaranteeing the free expression of the will of the electors.” Prohibiting

presidential reelection without term limits only restricts the person who is currently exercising

the presidency from participating in the elections. In this sense, this Court finds that the

sacrifice involved in this restriction is minor and justified to ensure that a person does not hold

onto power, thereby preventing representative democracy from being degraded.

125. Additionally, regarding the rights of other citizens, this Court recalls that Article 23 of

the Convention establishes the right to participate in the conduct of public affairs, through

freely elected representatives, as well as the right to vote in elections that “guarantee[...] the

free expression of the will of voters.” In this regard, this Court notes that the right to vote

does not entail a right to have unlimited options for candidates for the Presidency.

157

Instead,

the right protects voters’ ability to choose freely between registered candidates and ensures

restrictions on running as a candidate do not violate the Convention.

158

The prohibition on

presidential reelection without term limits restricts citizens from reelecting the President for

more than two consecutive terms when they believe him to be the most suitable person for

the office. However, this Court reiterates that, pursuant to Article 32 of the Convention, the

154

European Commission for Democracy through Law. CDL-AD (2009) 010 Opinion on the Draft Amendments to the

Constitution of the Republic of Azerbaijan adopted by the Venice Commission at its 78th Plenary Session (Venice, 13-

14 March 2009), para. 10.

155

Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs.

Judgment of November 21, 2007. Series C No. 170, para. 93; and Case of Álvarez Ramos v. Venezuela. Preliminary

Objections, Merits, Reparations and Costs. Judgment of August 30, 2019. Series C No. 380, para. 108.

156

Cf. Advisory Opinion OC-5/85, supra, para. 46, and Case of Usón Ramírez v. Venezuela, supra, para. 79.

157

Cf. Caribbean Court of Justice, in the appeal of the Court of Appeal of Guyana in the case of the Attorney General

of Guyana v. Cedric Richardson. Judgment of June 26, 2018, Decision of Judge Sir Dennis Byron, para. 27.

158

Cf. Human Rights Committee, General Comment No. 25 on participation in public affairs and the right to vote

(article 25), para. 15, and Caribbean Court of Justice, in the appeal of the Court of Appeal of Guyana in the case of

the Attorney General of Guyana v. Cedric Richardson. Judgment of June 26, 2018, Decision of Judge Wit, para. 141.

rights of individuals are limited by the rights of others, by the security of all, and by the just

demands of the common good. In this sense, the demands of the common good require that

democracy safeguards be established, such as by prohibiting indefinite presidential reelection

(infra paras. 145 and 146). Furthermore, the Court emphasizes that this prohibition does not

affect the right of voters to select, from among the candidates, the person most in line with

their preferences, even a representative of the same political party as the sitting president.

Therefore, the Court observes that this limitation is minor when compared to the benefits to

society of prohibiting presidential reelection without term limits.

126. Therefore, the Court concludes that prohibiting reelection without term limits is

compatible with the American Convention, the American Declaration, and the Inter-American

Democratic Charter.

VII

THE COMPATIBILITY OF UNLIMITED PRESIDENTIAL REELECTION WITH HUMAN

RIGHTS OBLIGATIONS

127. This Court reiterates that in the inter-American system, the American Declaration, and

the Convention do not impose a particular political system on States,

159

nor a specific modality

of limitations on exercising political rights.

160

However, the regulations that States implement

must be compatible with the American Convention and, therefore, with the principles of

representative democracy that underpin the inter-American system, including those derived

from the Inter-American Democratic Charter.

128. The American States assumed the obligation to guarantee the effective exercise of

democracy within their countries. This obligation means States must hold authentic regular

elections and take the measures necessary to guarantee the separation of powers, the rule of

law, political pluralism, and rotation of power, and to prevent a single person from holding

onto power (supra paras. 43 to 85 and 103 to 126). Otherwise, the system of government

would not be a representative democracy.

129. At the same time, in accordance with Articles 23, 24, 1(1) and 2 of the Convention,

States have the obligation to guarantee the enjoyment of political rights, which means they

must regulate the exercise of these rights and their application, consistent with the principle

of equality and non-discrimination, and they must adopt the measures necessary to guarantee

their full exercise.

161

These obligations under the American Convention must be interpreted in

accordance with the obligation to guarantee the effective exercise of democracy (supra para.

128).

130. In application of the foregoing, this Court will proceed to analyze whether presidential

reelection without term limits runs contrary to the American Convention.

131. First, the Court notes that establishing a set time period for a popularly-elected president

to serve in office is one of the main characteristics of presidential systems, and its observance

depends on whether the foundational elements of a representative democracy are preserved

159

OAS Charter, Article 3.

160

Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of August

6, 2008. Series C No. 184, para. 162.

161

Cf. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003.

Series A No. 18, para. 89, and Case of Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations

and Costs. Judgment of May 25, 2010. Series C No. 212, para. 106.

or have been eroded to such a degree that, in fact, it must be understood to have been

replaced by another—even opposite—system of government.

132. Setting a finite period of time for the presidential term itself limits their expectations and

effective exercise of their power. It also constitutes a mechanism of control, since limiting the

length of the term places an obligation on the head of State to abide by it and to facilitate

succession in accordance with the established rules in order to avoid the prolonged

concentration of power in this single individual and to preserve the balance inherent to the

separation of powers and the system of checks and balances through regular renewal of the

high court.

133. In this sense, when a single person remains the President of the Republic for a long

period of time, it is harmful to the pluralistic regimen of parties and political organizations,

typical of a representative democracy, because it favors the hegemony of certain sectors and

ideologies. Representative democracy and the obligation to guarantee human rights without

discrimination are based on the fact that there is a diversity of political thought and ideology

in society. Thus, no opinions or leanings are accepted unanimously. Regardless of whether the

person in power has the support of the majority of voters, States must always respect and

guarantee the freedom of expression and the right to political participation of the minorities.

In this sense, the Court reaffirms that, pursuant to the terms of Article 1(1) of the Convention,

in a democratic society, a person can never be discriminated against for their political opinions

or for legitimately exercising political rights.

162

Therefore, this Court finds that when a single

person can hold the powers of the office of the president without limit, it fosters hegemonic

tendencies that impair the political rights of minority groups and, consequently, undermine

the plural regime of political parties and organizations.

134. Second, the lack of limitations on presidential reelection leads to the weakening of the

political parties and movements that make up the opposition, as they do not have a clear

expectation of an opportunity to access the exercise of power. The weakening of political

parties has a negative impact on the functioning of democracy, since they play an essential

role in its development.

163

This affects the political pluralism that must exist in a democratic

society, which is fostered by Articles 13, 16, and 23 of the American Convention. In this

regard, the Constitutional Court of Colombia has indicated that respect for political pluralism

means recognizing that one political platform can always replace "another in the government

of the nation." Therefore:

[…] minorities, far from being silenced for the sake of majority rule, have the right to offer

their opinions and platforms as alternatives, with a real possibility of inspiring citizens to

join and thus become a majority, which requires providing rules to guide the dynamics of

the political process and, of course, compliance with those rules, especially by those who

represent the majority.

164

135. In the same sense, the Supreme Court of Justice of the Nation of Mexico has found that

"democracy means ensuring that people rotate in the exercise of public functions and that no

one can be considered indispensable to the exercise of State power."

165

Likewise, the

Constitutional Court of Ecuador has found that term-limiting presidential reelection "allows

162

Case of San Miguel Sosa et al. v. Venezuela. Merits, Reparations, and Costs. Judgment of February 8, 2018.

Series C No. 348, para. 117.

163

Cf. Declaration of Viña del Mar, supra, para. 24.

164

Constitutional Court of Colombia, Judgment C-141-10 of February 26, 2010. Available at:

https://www.corteconstitucional.gov.co/Relatoria/2005/C-1041-05.htm.

165

Supreme Court of Justice of the Nation of Mexico, Action of Unconstitutionality 47/2006, combined with

49/2006, 50/2006, and 51/2006, p. 98.

democratic rotation and promotes the right to participation of other members of society,”

166

and indicated that "the lack of a time limit on the exercise of power may lead to it becoming

associated with a single person, ostensibly affecting democratic participation under equal

conditions.”

167

136. On this point, the Venice Commission indicated that limits on presidential reelection "may

strengthen a democratic society, as they impose the logic of political transition as a predictable

event in public affairs" and "keep alive the opposition parties’ hope of gaining power in the

near future through institutionalized procedures.”

168

137. Similarly, the Secretary-General of the United Nations has pointed out that “where they

have been adopted, mostly in presidential or semi-presidential political systems, term limits

can be important mechanisms to safeguard against ‘winner-take-all’ politics. Under certain

circumstances, the removal of or a change in term limits can undermine the confidence

necessary for the political system to function well.”

169

138. In this regard, it is this Court’s view that States must establish clear limits to the exercise

of power in order to allow for the possibility that different political movements are able to

access it and for all citizens to be duly represented in a democratic system.

139. Third, depending on the powers that each State confers to the President of the Republic,

when a president remains in power for a long period of time, it impacts the independence and

separation of the branches of government. In this regard, this Court recalls that this, pursuant

to Article 3 of the Inter-American Democratic Charter, is one of the essential elements of a

representative democracy.

140. As noted above, in the presidential political system adopted by the States of the region,

constitutions frequently confer significant power to presidents, including the power to

nominate or appoint the authorities of other branches of government. One way of preventing

this from affecting the separation of powers is by establishing terms of a different length than

the presidential term for positions appointed by the president. When the same person holds

power for a long period of time, it invalidates this democratic safeguard. When a single person

holds the office of President for several consecutive terms, there are more opportunities to

appoint or remove officials from other branches of government or oversight bodies. Therefore,

in these types of regimes, it is essential for the system of checks and balances to include clear

term limits for the office of president, as established in the constitutions of the vast majority

of States of the region.

141. Fourth, according to Article 23 of the Convention, every citizen has the right to

participate in the conduct of public affairs, to be elected, and to access public functions under

general conditions of equality, which applies both to offices that are popularly elected and

offices that are nominated or appointed (supra para. 64). This Court notes that presidents

seeking reelection have a broad advantage in terms of media exposure and familiarity to

voters. Also, the exercise of power itself can give the idea that keeping the same person in

office is essential for the State to function.

166

Constitutional Court of Ecuador, Opinion No. 7-19-RC / 19 of November 5, 2009, para. 40. [8504]

167

Constitutional Court of Ecuador, Opinion No. 7-19-RC/19 of November 5, 2009, para. 44. [8505]

168

European Commission for Democracy through Law. Report on Term Limits, supra, para. 93.

169

Report of the Secretary General, Strengthening the role of the United Nations in enhancing the effectiveness

of the principle of periodic and genuine elections and the promotion of democratization (A/72/260) of August 1, 2017,

para. 43.

142. Furthermore, if the systems to check and balance the president’s power are not working

for the reasons outlined above, the president may use public resources to directly or indirectly

favor their reelection campaign. Therefore, this Court concludes that the office of the president

gives the person holding it an advantage during elections. The longer the time spent in office,

the greater this advantage becomes.

143. Similar to the considerations already set forth, the Venice Commission has indicated that

"abolishing limits on presidential reelection represents a step back in terms of democratic

achievement, at least in presidential or semi-presidential systems." In this regard, it explained

that:

By eliminating an important protection against distortive concentrations of power, abolishing term

limits also risks undermining various aspects of the human right to participate in public life. These

include the right to participate in genuine periodic elections, the ability to ensure that persons entitled

to vote have a free choice of candidates, that representatives are freely chosen and accountable, and

that the authority of government continues to be based on the free expression of the will of

electors.

170

144. Finally, this Court reiterates that respect for the rule of law means that the people who

exercise power must respect the norms that make life in democracy possible. In view of the

above considerations, this Court highlights that enabling presidential reelection without term

limits by allowing the incumbent president to stand for reelection has serious consequences

in terms of access to power and the functioning of democracy in general. Therefore, the

removal of the limits preventing presidential reelection without term limits must not be subject

to being decided by the will of the majority or their representatives for their own benefit (supra

para. 79).

145. This Court emphasizes that, as a general rule, the risks posed to democracy in the region

by presidential reelection without term limits have materialized. Therefore, this Court

concludes that when enabling presidential reelection without term limits keeps political forces

other than the person holding the office of the presidency from gaining popular support and

being elected, it affects the separation of powers and, in general, weakens the functioning of

democracy. This Court warns that the greatest current danger facing the region's democracies

is not the abrupt breakdown of the constitutional order, but the gradual erosion of democratic

safeguards that can lead to an authoritarian regime, even if it is popularly elected.

Consequently, democratic safeguards should provide for prohibiting presidential reelection

without term limits. This does not mean that persons other than the current president but

from the same party or political movement should be restricted from running for the office of

the presidency.

146. Therefore, from a systematic reading of the American Convention—including its

preamble, the OAS Charter, and the Inter-American Democratic Charter—it must be concluded

that enabling indefinite presidential reelection is contrary to the principles of a representative

democracy and, therefore, to the obligations established in the American Convention and

American Declaration of the Rights and Duties of Man.

147. In this regard, this Court reiterates that the inter-American system, the American

Declaration and the Convention do not impose a political system on the States, nor a specific

modality in terms of the limits on exercising political rights. States can regulate presidential

reelection according to their historical, political, social and cultural needs (supra para. 86).

However, the American states have sovereignly consented that the effective exercise of

democracy constitutes an international legal obligation (supra para. 55) and have agreed to

comply with the human rights obligations derived from the international instruments that are

170

European Commission for Democracy through Law. Report on Term Limits, supra, para. 101

part of the inter-American human rights protection system. Therefore, regulations on

presidential reelection must be compatible with the American Convention, the American

Declaration, and the principles of representative democracy, and consequently, domestic legal

provisions on the exercise of political power must be harmonized with the human rights

recognized in the international instruments of the inter-American human rights protection

system.

148. In this sense, the purpose of this Advisory Opinion is not to restrict presidential reelection

in general, but to clarify that the absence of a reasonable limitation on presidential reelection

or the implementation of mechanisms that materially allow existing formal limitations to be

disregarded and directly or indirectly enable the same person to continue to serve in the office

of president is contrary to the obligations established in the American Convention and the

American Declaration of the Rights and Duties of Man.

VIII

OPINION

149. Therefore, in interpretation of articles 1, 23, 24, and 32 of the American Convention

on Human Rights, XX of the American Declaration of the Rights and Duties of Man, 3(d) of the

Charter of the Organization of States Americans, the Inter-American Democratic Charter, and

other instruments that concern the protection of human rights in the American States,

THE COURT,

DECIDES,

by five votes in favor and two opposed, that:

1. It is competent to issue this Advisory Opinion, in the terms of paragraphs 14 to 41.

Judge L. Patricio Pazmiño Freire and Judge Eugenio Raúl Zaffaroni dissent.

AND IS OF THE OPINION

by five votes in favor and two opposed, that:

2. Presidential reelection without term limits does not constitute an autonomous right

protected by the American Convention on Human Rights or by the corpus iuris of international

human rights law.

3. Prohibiting reelection without term limits is compatible with the American Convention on

Human Rights, the American Declaration of the Rights and Duties of Man, and the Inter-

American Democratic Charter.

4. Enabling presidential reelection without term limits is contrary to the principles of

representative democracy and, therefore, to the obligations established in the American

Convention on Human Rights and the American Declaration of the Rights and Duties of Man.

Judge L. Patricio Pazmiño Freire and Judge Eugenio Raúl Zaffaroni dissent.

Judges L. Patricio Pazmiño Freire and Eugenio Raúl Zaffaroni informed the Court of their

individual dissenting opinions.

DONE, at San José, Costa Rica, on June 7, 2021, in the Spanish languag

Inter-American Court. Presidential reelection without term limits in presidential systems in the

context of the inter-American human rights system. (Interpretation and scope of articles 1, 23,

24, and 32 of the American Convention on Human Rights, XX of the American Declaration of the

Rights and Duties of Man, 3(d) of the Charter of the Organization of American States and of

the Inter-American Democratic Charter) Advisory Opinion OC-28/21 of June 7, 2021.

Elizabeth Odio Benito

President

L. Patricio Pazmiño Freire Eduardo Vio Grossi

Humberto Antonio Sierra Porto Eduardo Ferrer Mac-Gregor Poisot

Eugenio Raúl Zaffaroni Ricardo C. Pérez Manrique

Pablo Saavedra Alessandri

Secretary

So ordered,

Elizabeth Odio Benito

President

Pablo Saavedra Alessandri

Secretary

DISSENTING OPINION OF

JUDGE L. PATRICIO PAZMIÑO FREIRE

ADVISORY OPINION OC-28/21

OF JUNE 7, 2021.

REQUESTED BY THE REPUBLIC OF COLOMBIA

PRESIDENTIAL REELECTION WITHOUT TERM LIMITS IN THE CONTEXT OF THE

INTER-AMERICAN HUMAN RIGHTS SYSTEM

Summary

For the argumentation and development of this dissenting opinion, an interpretation and

reflection will be carried out of the four unnumbered paragraphs of the recitals of the

resolution of the Ninth International American Conference; of the preamble and Articles

XX and XXXIII of the American Declaration of the Rights and Duties of Man; the first to

fifth and seventh unnumbered paragraphs of the preamble, and article 3.d) of the

Charter of the Organization of American States (hereinafter “OAS Charter”); the

preamble and Articles 1, 2, 23, 24, 29 and 32(2) of the American Convention on Human

Rights; and paragraphs 1, 5, 6, 7, 8, 9, 16, 17, 19, y 20, not numbered, in the preamble,

as well as Articles 2 to 7 of the Inter-American Democratic Charter.

This opinion develops the arguments based on which I disagree with the majority

decision adopted by the Court in this advisory opinion, for which I present four

components: first, I argue that the Court insufficiently analyzed the reasons for granting

admissibility of the request for an advisory opinion presented by Colombia by omitting

and avoiding referring to a substantial part of its own case law, and therefore the

conclusion reached in this procedural phase was incorrect. Second, I intend to establish

through my reasoning and the grounds offered that the Court exceeded its advisory

jurisdiction by directly interpreting provisions of the Inter-American Democratic Charter,

granting it the status of a human rights instrument, without having jurisdiction and

lacking the power to do so. Third, I postulate that by rephrasing the second question

presented by Colombia, the Court introduced, ex officio, aspects that were not part of

the original request, thus undermining the object of the request for an advisory opinion.

Finally, and by way of conclusion, I offer what I consider some relevant reflections on

the complex, diverse, and even contradictory political and constitutional architecture that

is a substantial part of the rule of law in our region and, based on my opinion, I reflect

on some of the roles that international bodies should play when supporting their

development, strengthening, and deepening, always in accordance with the founding

principles approved by the founding States of the system, the free self-determination of

the peoples, while avoiding external interference in the internal affairs of our republics.

1. Formal considerations

1. Before addressing the aspects with which I disagree, I consider it important to

recall what the advisory function of the Inter-American Court of Human Rights

(hereinafter "the Court") is and its basis in the Convention and the Rules of Procedure

establishing and regulating it.

2. The American Convention on Human Rights (hereinafter “the Convention”) grants

the Court broad interpretative power through which the States and some organs of the

Inter-American System can ask the Court about the interpretation of the Convention or

other treaties concerning the protection of human rights in the American States.

Additionally, through the exercise of this power, the Court is allowed to issue opinions

on the compatibility between any domestic law and international instruments, at the

request of a State.

In the same sense, the Rules of Procedure

of the Court develop the

guidelines to be followed in the event of a request for an advisory opinion, as well as

some formal requirements that must be followed, such as (i) formulate the questions

precisely; (ii) specify the provisions that must be interpreted; (iii) indicate the

considerations originating it, and (iv) provide the name and address of the agent.

3. Throughout its settled case law, the Court has adopted interpretative criteria that

give content to the provisions of Article 64 of the Convention, as well as the provisions

of the Rules of Procedure governing the advisory opinion process. In this regard, and as

far as what is of interest to this dissenting opinion, I will refer, first of all, to three formal

aspects that were analyzed by the Court and with which I disagree: (i) regarding the

existence of certain petitions being processed before the Inter-American Commission,

(ii) jurisdiction over the regional instruments involved, and (iii) the formal requirement

to ask questions.

i. The existence of certain petitions pending before the Inter-American

Commission

4. During the processing of the Request for an advisory opinion that led to this

dissenting opinion, the Court was informed, during the public hearing and by the Inter-

American Commission itself, of the existence of petitions related to the purpose of the

advisory opinion. In this regard, the Commission informed the Court of the existence of

three petitions at the admissibility stage regarding Bolivia and one at the merits stage

regarding Nicaragua, all four related to the questions posed by Colombia. The Court also

received a written observation in which it was asked to find the request inadmissible

because, according to the observation, the decision by the Court would undermine its

contentious jurisdiction in the pending case.

5. Regarding the foregoing, although when analyzing this, the Court concludes that it

has jurisdiction to rule on Colombia's question, simply by referring to its jurisprudence

by stating that “the mere fact that there are petitions before the Commission or

contentious cases related to the question of the consultation is not enough for the Court

to refrain from responding to the questions submitted for consultation,” this sole

reference is clearly insufficient, given that a more in-depth, thoughtful, and specific

analysis was not carried out for each of these three cases brought to the attention of the

Court, especially the one that was already under its jurisdiction, considering that on

other occasions, requests for an advisory opinion have been rejected precisely based on

the reasons now used to admit them.

Article 64 of the American Convention on Human Rights.

Title III of the Rules of Procedure the Inter-American Court of Human Rights

Paragraph 22 of the advisory opinion resolution.

6. In particular, the Court failed to include in its analysis on admissibility what its case

law has established as “generic limitations” to its advisory function. According to these

limitations, a request for an advisory opinion: (a) cannot cover a contested case or seek

to prematurely obtain a ruling on an issue or matter that could eventually be brought

before the Court in a contentious case; (b) must not be used as a mechanism for

obtaining an indirect ruling in a matter being litigated or a domestic conflict; (c) must

not be used as a tool of domestic political discussion; (d) must not exclusively address

issues on which the Court has already ruled in its case law; and e) cannot seek rulings

on matters of fact but rather aim at disentangling the sense, purpose, and reason of

international human rights law, especially to assist OAS member States to fully and

effectively comply with their international obligations.

Not only has the Court established

these “generic limits,” it has applied them to reject, recently, a request for an advisory

opinion presented by the Secretary General of the Organization of American States on the

grounds that “it could constitute a premature ruling on the subject or matter in question,

which could be submitted later in the framework of a contentious case.”

7. Along the same lines as the "generic limits" developed in the Court's case law, the

Court, at the time of issuing the Order originating this dissenting opinion, not only failed

to analyze the aforementioned limits, but also failed to rule on the fact of that the case

“Fabio Gadea Mantilla regarding Nicaragua”—at the time presented by the Inter-

American Commission itself as a case in the merits stage, and regarding which one of

the observations received asked the request for an advisory opinion be declared

inadmissible—was already a party and was submitted, as a contentious case, before the

jurisdiction of the Court by the Inter-American Commission, as of June 5, 2021, the

date prior to the beginning of the deliberation of this advisory opinion order.

8. Since the case “Fabio Gadea Mantilla regarding Nicaragua”—the name under which

it was submitted by the Inter-American Commission—was already known to the Court,

I am of the opinion that the Court was obliged to include in its reasoning a meticulous

and sufficient analysis clarifying the generic limits to the advisory function of the Court

in light of the object of the dispute in the aforementioned case, in order to determine

objectively, accurately and clearly, whether to issue an advisory opinion order on the

issue before us, whether or not one or more of the generic limitations already defined

by the Court applies, and, in particular, it would have been of interest for clarifying and

consolidating the Court’s case law and authorities, for the Court to indicate whether or

not the admission and eventual decision represents a premature ruling on a case that,

clearly, was already submitted to the Court as a contentious.

ii. Competence regarding the regional instruments involved

9. The Court’s authority to interpret any provision of the American Convention is not

up for debate in the inter-American juridical realm. Nor do I intend to dispute the Court’s

jurisdiction to interpret the American Declaration and to exercise its advisory jurisdiction

with respect to the OAS Charter. However, my attention is drawn to the prominence

granted to the Democratic Charter in the order to which this dissenting opinion responds

Cf. Rejection to the Request for an Advisory Opinion presented by the Secretary General of the Organization

of American States. Order of the Inter-American Court of Human Rights of June 23, 2016, paras. 5 and 6.

Cf. Rejection to the Request for an Advisory Opinion presented by the Secretary General of the Organization

of American States. Order of the Inter-American Court of Human Rights of June 23, 2016, para. 7.

See http://www.oas.org/es/CIDH/jsForm/?File=/es/cidh/prensa/comunicados/2021/169.asp.

and the Court’s conclusions with respect to that instrument, as well as its interpretation

of it.

10. Although the order states that the Court had previously determined that the

Democratic Charter constitutes an interpretive text of the OAS Charter and the American

Convention, which is why it will use their provisions to address the questions posed by

Colombia, it is my opinion that the Court oversteps its own conclusion—and its

competence—by directly interpreting the provisions of the Democratic Charter.

11. Since its first Advisory Opinion, the Court has recognized that the breadth of the

Court’s advisory function cannot be confused with a lack of limits on it with regard to

matters that may be the subject of consultations and the treaties that can be

interpreted.

Furthermore, even using a literal interpretation of Article 64 of the

Convention, it would not be possible for the Court to interpret the Democratic Charter,

since its jurisdiction is limited to the Convention and to “other treaties concerning the

protection of human rights,” so interpreting this instrument under the advisory function

would mean raising it to the rank of a human rights “treaty,” which, due to its nature

and purpose, is inappropriate and inaccurate, as this would grant it a legal status not

provided for in the text of the Charter itself.

12. The Democratic Charter was established as and constitutes a document of public

international law aimed at promoting the democratic development of the States of the

region. The subjects implicated in its provisions are strictly States and international

organizations, it being recognized as one of the inter-American instruments enacted for

the "promotion and strengthening of the principles, practices and democratic culture

among the states of the Americas."

Thus, because it is an instrument to be applied

"among the states of the Americas,” it would be a serious interpretive distortion to try

to equate it with or assign it the rank or category of an international human rights

instrument, which, by their intrinsic nature, recognized by the Universal Declaration of

Human Rights, are international instruments created and approved with provisions

aimed specifically at protecting the human rights of persons, with the subjects involved

and obligated to comply with the object of those treaties in terms of guaranteeing and

protecting being, specifically, States and their agents.

13. Therefore, it is my opinion that the analysis carried out by the Court throughout

the order explicitly and directly interprets the provisions of the Democratic Charter, thus

improperly exceeding its advisory competence.

iii. The requirement to ask questions

14. The Court’s authority to specify, clarify, or rephrase the questions brought before

it in order to clearly determine the substantive object of its interpretive work is not in

dispute. Upon making the request for an Advisory Opinion, Colombia asked two

questions, one of which the Court concluded was “conditioned on certain facts,” for which

reason it reworded it. The question submitted was the following:

ii) Should a State change or seek to change its legal system to ensure, promote,

foster, or prolong a ruler’s tenure in power through indefinite presidential

reelection, what are the effects of this change with regard to States’ obligations to

respect and guarantee human rights? Does this change run contrary to the State’s

international human rights obligations and, in particular, to their obligations to

Cf. “Other treaties” subject to the consultative jurisdiction of the Court (Article 64 of the American

Convention on Human Rights). Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, para. 18.

See: Inter-American Democratic Charter

https://www.oas.org/es/centro_noticias/comunicado_prensa.asp?sCodigo=D-014/16.

guarantee the effective exercise of the rights to: (a) take part in the conduct of

public affairs, directly or through freely chosen representatives; (b) vote and 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;

and (c) have access, under general conditions of equality, to the public service of

his country.

15. The Court, justifying its actions based on its authority to “unpack the meaning,

purpose, and reasoning of international human rights norms, decides to reduce the

question to the “compatibility of presidential reelection without term limits with

representative democracy in the inter-American human rights protection system.” It is

my feeling that by introducing the concept of "compatibility" of so-called “presidential

reelection without term limits", the Court decided, on its own account, to address and

even set the limits, profile, and content of the sui generis qualification, not of a right,

but of a term, a figure, a concept, that is, so-called “presidential reelection without term

limits," whose origin, nature, characteristics, and theoretical presuppositions, at least in

my opinion, are quite broad and indefinite, whether in political science, social sciences,

and the legal sciences themselves, and regarding which there is no consensus in terms

of rigor or doctrine. More precisely, with this decision, the Court decided to address the

delicate, complex and not a little controversial democratic architecture and structure,

and the forms of government that States choose in the exercise of their sovereignty.

Beyond the legitimate motivations and convictions that inspire my colleagues, this

advisory opinion, transformed into an order with which the States Parties must comply,

is a legal gambit whose animus will hardly be able to homogenize the conduct, tradition,

values, and actions of the peoples of the Central and South American region, regarding

which if anything never ceases to surprise us, it is their vibrant vitality and constant

movement toward the best futures that they can secure for their peoples.

16. I am not interested in challenging the Court’s power to rephrase or refine questions

that are submitted to it in the framework of a request for an Advisory Opinion, but, in

this specific rephrasing, in addition to the thoughts put forth in the preceding paragraph,

I disagree technically with the way in which the majority resolved to redirect the

question. Not only does it rephrase it ex officio, since at no time was it mentioned,

referred to or requested by Colombia, but it also constructs and gives it its own definition

and characterization, for which, in my opinion, it does not offer legal or doctrinal

evidence that it is empowered to make such a decision, since the Court changes the

object of the question originally presented by Colombia and introduces legally

indeterminate elements to the analysis, fostering a sui generis uniformity and

codification of the laws of the states of the Hemisphere, with far-reaching political and

legal consequences for the democracies and States of the region. Also, these areas of

reflection, discussion, and proposal may eventually have been addressed and probably

resolved by other instances of the system, such as the Inter-American Juridical

Committee, a body that, according to its website (https://www.oas.org/en/sla/iajc/inter-

american_juridical_committee.asp): “… is one of the principal organs of the Organization

of American States (OAS). The Committee serves the Organization as an advisory

body on juridical matters to promote the progressive development and

codification of international law and to study the possibility of standardizing

legislation across the countries of the Hemisphere” (emphasis added). Finally, I

would argue that the question originally formulated should indeed be clarified and

reworded, but in such a way as to maintain its essence and object, which did not happen

in how the Court did it.

2. Considerations of substance

17. Having established my position on some of the formal aspects analyzed by the

Court, I would now like to make a few points regarding representative democracy and

political rights, which are relevant not only by virtue of the order adopted by the Court

in this case, but also for the current context of the region and the prospect of what will

result from the opinion.

i. The road to representative and participatory democracy

18. Context is important, because as I write this opinion, our political, social, and legal

institutions have suffered a radical breakdown as a result of the devastation brought by

the pandemic. Along with this reality, the historical and brutal inequality that has

dragged down our region since colonial times has been made clear. This context is very

relevant because at this time, there are many protests throughout our region demanding

comprehensive solutions from our political, economic, and social systems.

19. If ignoring this context is to try to blot out the sun with a finger, arguing a political

system can be a formula to guarantee democracy is as fruitless an endeavor as damming

a river with sand. Since the attempted globalization of the economy and the free market

with the Washington Consensus, we have lived through years of failed attempts at

economic, social, and political programs with failed recipes from the neocolonial

laboratory in our region that reveal that at the very heart of the Latin American

discontent lies a gap between democratic promise and reality. Almost 25 years into the

21st century, the peoples have decided that their leaders are not up to the task of

projects that seek solutions to the problems we face as societies. Long-standing and

rooted problems, just to name a few: concentration of wealth and socialization of

inequality, organized crime on the rise, drug trafficking co-opting spheres of political

power, extrajudicial executions of social communicators, community leaders and human

rights defenders, an unstoppable rise in femicide rates, collapse of health, education and

public security services, gruesome devastation of jungles, tropical forests and water

sources, accompanied by a persistent loss of respect for and faith in democratic

institutions, evidenced by figures showing a steady decrease in people’s active

participation in the electoral political processes and in public affairs in general.

20. I am fully convinced that, first of all, the answer to these problems lies in

consolidating public policies from a human rights perspective. However, I am not

similarly convinced when it is posed to me that the political pathologies that we live with

can be resolved with a simple formula prescribed by international bodies, a formula that

includes damming the river of popular discontent using models of democracy that inhibit

and shield against any hint of change or challenge to its centuries-old foundations. The

fact is this river of social demands will never find its course with inflexible, imported, and

model democratic systems that resist any call for change and the substantive

reformulation of its foundations. The remedy would be much worse than the disease.

21. Without wanting to be self-referential, but considering that the argumentative logic

requires it and in order to be consistent in my thinking and actions, I must note that I

already started a conversation about participatory democracy in my opinion supporting

and partially dissenting from Advisory Opinion 26 on “The obligations in matters of

human rights of a State that has denounced the American Convention on Human Rights

and the Charter of the Organization of American States."

At that time, the majority of

Cf. Denunciation of the American Convention on Human Rights and the Charter of the Organization of

American States and the consequences for State human rights obligations (interpretation and scope of articles

1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53,

106 and 143 of the Charter of the Organization of American States). Advisory Opinion OC-26/20, November

9, 2020. Series A No. 26. Vote in favor and partially dissenting of Judge L. Patricio Pazmiño Freire.

the Court did not choose to delve into more precisely developing the content of the

democratic principle. Like this advisory opinion, the Inter-American Democratic Charter

was used as "inspiration" to reiterate the relevance of certain formulas that may seem

discursive, but that deep down bring with them the danger of repeating something until

it becomes an unassailable truth or the only version of what we consider to be

democracy. We cannot continue to end the discussion on the democratic principle and

democracy by concluding it is moralistic and almost exclusively so: a form of democracy

in which we are represented and those who we choose to represent us govern the nations

in our name. The quindennium of this century witnessed a coalescence of constitutional

yearnings that reformulated institutional frameworks that had been considered

immovable, concepts that reformulated and enriched the notion of representation by

adding participation by the people and reformulating economic models inspired by

production and the redistribution of profits. From these unprecedented social processes,

the region has undertaken profound constitutional transformations in the framework of

electoral democracy. The common people cry out, in the streets or in the last beating of

the hearts silenced by this pandemic, for models that truly represent us Americans, from

the contents of a representative democracy that includes the active, responsible, and

purposeful participation of citizens in its institutional and cultural DNA, people wanting

to participate in the design and management of public affairs that revolve around the

common good and a good life.

22. As I indicated at the time, in our region, where there is a plurality of deeply-rooted,

traditional, and culturally-diverse legal and political systems, representative democracy,

in its most limited conception, is insufficient to meet the requirements of the democratic

principle. Several years ago, following the disastrous dictatorial era, starting in the

eighties, a constitutionalism has been developing in Latin America that seeks not only to

recognize the rights of women, indigenous and tribal peoples, and sexually-diverse

groups, but their full participation in public affairs.

For this reason, I assert that as a

touchstone for the juridical debate on treaty obligations, the Inter-American Court should

expand the concept of democracy to enrich both the notion of representative democracy

and its participatory component. This will mean not only fulfilling the democratic principle

in terms of formal representation, but also incorporating the concept of substantial

participatory, inclusive, non-exclusive democracy that is generous and lavish in terms of

how it transforms and changes, far removed from confrontation and hatred in favor of

the diverse, the different, the other.

23. There is an urgent and pressing need to offer a hermeneutic for treaty obligations

whose assumptions are oriented toward and willing to recognize that “reformulation of

the constitutional [and international order introduces] and develops the most cutting-

edge concepts[, such as,] local or national referendums, primary elections to select

candidates, plebiscites, referendums, the recall of popularly elected officials,”

as well

as the innovative creation of new government authorities, such as the electoral function,

the establishment of constitutional mechanisms for citizen participation in the

management, control, and oversight of government authority, as well as the emergence

of constitutional reform processes through constituent assemblies with broad social and

popular participation that go beyond cosmetic reforms and constitutional changes carried

out by legislators and designed by the powerful, elite, or exclusive or selective groups,

generally the beneficiaries of the changes sought.

Cf. Pazmiño, Patricio. Descifrando Caminos. Del Activismo Social a la Justicia Constitucional. Flacso,

2010.

Cf. Pazmiño, Patricio. Descifrando Caminos. Del Activismo Social a la Justicia Constitucional. Flacso,

2010, p. 50.

ii. Incorrect methodological approach and rephrasing of political rights

24. There is a methodological problem in the majority’s formulation concluding that

“presidential reelection without term limits” is something regarding which the Court must

issue an opinion. A supposed right to reelection has been integrated via analogy, ignoring

that this is the result of the exercise of a right and not a right in itself. It is not necessary

for an international court to limit spaces for democratic participation, but rather to

promote their expansion. An approach to the questions posed by the Colombian State

would not mean developing them to address a so-called "right to reelection without term

limits" but rather approach from the perspective of the right to elect and be elected and

to access a position under conditions of equality.

ii.1 The content of the political rights set forth in Article 23 of the American

Convention

25. I believe that the Court should have rephrased this question to deepen—if

necessary—the content of political rights, but not address them from the perspective of

a hypothetical consequence such as the possibility of reelection. I would note the

importance of the content of political rights. In this regard, in its Article 23 on political

rights, the American Convention itself places particular emphasis on "rights and

opportunities" being accessed on an equal footing. It is no coincidence that the literal

wording of the Convention refers to equality as a necessary precondition for adequate

participation, nor is it a coincidence that the first case resolved on political rights was

Yatama v. Nicaragua, on the possibility of an indigenous political party participating in

elections. The notion of equality and liberty is what underpins political rights: Equal

access to office, as well as the liberty of the people to elect, and therefore, decide.

26. I therefore conclude that it is a mistake to assert that "reelection" is a human right.

From a human rights perspective, it is clearly inconsistent to think that reelection—which

is at the same time a possibility and also, depending on the result, the product of an

electoral process—can be conceived of as a right. Approaching it in this way would limit

interpretation in particular cases under Article 23, that is, the right to elect and be

elected. Methodologically, this distinction is vital, as the Court has been asked to analyze

a right based on its violation, not its exercise. It was suggested that there is a supposed

right to “reelection without term limits." I wonder, are we talking about abuse of the

right? Are we looking at a violation of this right? Or are we considering the possibility

that the political system may allow someone to stand for reelection regularly and

consecutively? These are all legitimate doubts that arise from having asked the questions

from an approach that nominally does not provide a clear analysis of Article 23.

27. The Court has already indicated that Article 23 specifically establishes what States

must guarantee under equal conditions. Specifically, it indicates that it is about the right:

i) to participation in the conduct of public affairs, directly or through freely chosen

representatives; ii) to vote and to be elected at genuine periodic elections which shall

be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the

free expression of the will of voters; and iii) to access public service in their country.

28. It is part of the content and logical consequence of Article 23 of the Convention

that an unlimited mandate is contrary to international law. Therefore, when we speak of

‘‘ unlimited mandate,’’ we are referring to one that does not allow for regular elections,

of freely elected representatives, without universal and equal suffrage, that does not

guarantee the free expression of voters.

iii. Constitutional and political architecture as a power inherent to the

peoples

29. The application by analogy of reelection with an unlimited mandate makes a

response from the Court methodologically incoherent. Personally, I do not think

reelection is a human right or that its content can even be formulated as a right, so its

analysis is abstract. It leads us irreversibly to addressing the political or constitutional

architecture of the States of the region.

30. Going far back, and for historical reasons, in Latin America, we have dismissed all

possibility of a monarch or similar figures that grant someone the right, based on

surname, blood, or caste, to govern, to receive contributions or privileges. Anachronistic

figures such as the monarchy or the nobility have been eradicated from our systems that

consider equality before the law to be the fundamental principle on which our political,

social and legal regimes rest.

31. Along these lines, should the Court decide to issue an opinion, it should also

reaffirm, as we have on several occasions, the standards related to political rights. We

could have developed the democratic principle from the perspective of the right to elect

and be elected on an equal footing. Unfortunately, because of the way it was worded,

the question runs the risk of raising doubts as to the political and constitutional

architecture of our countries, attempting a type of homogenization or legislative

unification that affects the rights to sovereignty, self-determination, and noninterference

in States’ internal affairs, which are the cornerstones of the OAS Charter.

32. For the liberator Simón Bolívar "freedom has to adjust to the history and traditions

of peoples."

The Court found likewise in the case of Castañeda Gutman v. México in

2008, the second case on political rights:

the Court finds it necessary to indicate that, in general, international law does not

impose a specific electoral system or a specific means of exercising the rights to

vote and to be elected. This is clear from the norms that regulate political rights

in both the universal and the regional sphere, and from the authorized

interpretations made by their organs of application.

33. In this specific case, in which it was debated whether or not Mexico should, in

accordance with international obligations, allow independent candidacies or maintain a

system built exclusively on the basis of political parties for the election of the President

of the Republic in that country, the Court concluded that it was not necessary to

determine which political system is in accordance with the American Convention and

quite rightly found that:

The Court is aware that there is a profound crisis as regards the political parties,

the legislatures and those who conduct public affairs in the region, which calls for

a thorough and thoughtful debate on political participation and representation,

transparency, and the rapprochement of the institutions to the people, in brief,

on strengthening and improving democracy. Civil society and the State have

the fundamental responsibility, which cannot be waived, to carry out this

discussion and make proposals to reverse the situation. In this regard, the

States must assess the measures that will strengthen political rights and

democracy according to their particular historical and political evolution,

and independent candidacies may be one among many of these mechanisms.

Permanent Council of the Organization of American States, Minutes of the Protocol Session held on July

24, 2007. OEA/Ser.GCP/ACTA1603/07, July 24, 2007.

Cf. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs.

Judgment of August 6, 2008. Series C No. 184, para. 204.

34. In conclusion, we have shown how the Court found that it is a responsibility “which

cannot be waived” of the State itself and organized civil society to reflect and undertake

political and reform projects. It is therefore unnecessary, if not absurd and outside its

juridical competence, to consider that the Court, or a majority of it, can decide on the

best system of political or constitutional architecture to “... strengthen political rights

and democracy...” in our countries.

This is my opinion.

L. Patricio Pazmiño Freire

Judge

Pablo Saavedra Alessandri

Secretary

DISSENTING OPINION OF JUDGE E. RAÚL ZAFFARONI

REGARDING

ADVISORY OPINION OC-28/21

OF JUNE 7, 2021.

REQUESTED BY THE REPUBLIC OF COLOMBIA

PRESIDENTIAL REELECTION WITHOUT TERM LIMITS IN THE CONTEXT OF THE

INTER-AMERICAN HUMAN RIGHTS SYSTEM

(Interpretation and scope of articles 1, 23, 24, and 32 of the American

Convention on Human Rights, XX of the American Declaration of the Rights and

Duties of Man, 3(d) of the Charter of the Organization of American States and of

the Inter-American Democratic Charter)

1. The commendable aim of the responses

First of all, it is worth highlighting the great importance

of the noble objective pursued in the majority response of

the Court to this advisory opinion, the text of which shows at

all times the healthy intention of avoiding any deformation of

our representative democracies or the installation of

autocracies and of other ways of subverting the will of the

people.

The vicissitudes of the political histories of our States,

plagued by abuses of power, sad episodes of dictatorship, and

regimes of frank lawlessness, from the Rio Bravo southward,

is typical of a geopolitical region disadvantaged by its

submission to five hundred years of successive stages of

colonialism.

History, with its sad experience of millions of dead and

enslaved, and their marks and scars still raw, amply explains

the noble intention of the answers offered in the majority

opinion of the Court.

Unfortunately, I find myself needing to push back on the

optimism expressed by the majority. If only this Court could

prevent any eventual deformation of representative

democracies and any autocracy or deviation from the

principles of the rule of law on the continent.

For legal reasons, my opinion is that the Court is not

competent to judge the particularities of the forms of

government that our States adopt, beyond the strict limits

essential to any representative democracy indicated by the

international instruments that the Court has the duty to

enforce, none of which make any reference to reelection

without term limits.

But even if the Court had competence to reach beyond

those limitations and set detailed guidelines for the internal

projection of the institutional engineering of the democratic

systems of the States—that is, to impose detailed political

and constitutional guidelines on them, beyond the essential

and basic principles indicated in the international

instruments—my opinion is that this enterprise would in fact

be unsuccessful, even should it fall into exhausting casuism,

due to the accelerated dynamics of how power mutates in

response to the various situations arising from the

unforeseeable accidents of small-scale, cunning, and over-

the-top politics, which has been the lesson of the historical

experience always and everywhere.

2. Personal citizen preferences

I must point out that, as a citizen and as my personal

conviction, I do not prefer reelection without term limits, nor

even presidential systems. As a citizen, I think that one day

it will be unavoidable for my country and others in our region

to adopt the parliamentary system. I do not share the

frequently-made argument that our tradition prevents it. My

view is that it represents an underestimation of the people to

argue that presidentialism is imposed upon us because that

supposed tradition requires strong political leadership. I

believe that all people aspire to leadership of that nature and

not only ours. All peoples aspire to elect leaders

democratically and to be led by the best and noblest and the

most capable, upright, and intelligent of its citizens who, in

addition, have gifts of empathy. But these are personal

conditions that do not depend on the particular form of the

more or less precise constitutional regulation of democratic

systems, since they are not granted by the constitutions:

Quod natura non dat, Constitutio non præstat.

Undoubtedly, people with these qualities have excelled

and governed within the framework of parliamentary systems

and have been repeatedly reelected by their peoples, while

there have also been those who, without any of these

conditions, have governed in presidential systems.

In any case, it is only my personal conviction as a citizen,

so I congratulate myself that reelection without term limits

is not allowed in my country and I am sorry that it does not

adopt the parliamentary system.

3. The neutralization of defense

mechanisms

In any case, the exercise of the judicial function, and

especially, that of enforcing the Constitution—in this case

international treaty obligations—requires the judiciary to

make a considerable effort to separate personal preferences

from what should sincerely be deduced when technically

interpreting legal texts.

Of course, this is not easy, because no judge stops being

human, and therefore, the intellectual and sentimental or

emotional spheres interact and, among other tricks,

rationalizations tend to come into play.

The emotional imp easily dresses itself in rationality

when exercising the power to declare unconstitutional laws

sanctioned by parliamentary majorities and, consequently,

sets the trap that leads to the error of finding

unconstitutional any law that is disagreeable or contrary to

the personal preferences or values of the judge. Hence, there

is a need to be aware of the risk in order to remove this

temptation when deciding on questions that require the

utmost delicacy in the exercise of the task of making the

rules at the top of the legal pyramid effective.

This requirement is most important when it comes to

nothing less than assessing a question related to the limits

that the States imposed on themselves via international

treaty to delimit the scope of their domestic constitutional

authorities—that is, the definition and valuation of the

specific political institutions established by each people on

the continent when establishing the particular profiles of

their respective democratic systems.

4. Admissibility of the advisory opinion

Once the temptation to rationalize is removed, the first

question that I observe regarding this advisory opinion is with

regard to its admissibility. In this regard, during the public

hearing, it became clear that the request was motivated by

the institutional conflict impacting the Plurinational State of

Bolivia and that made that country go through a period of

lawlessness, leading to one of the most difficult moments in

recent years for the validity and effectiveness of the

democracies of the continent, in particular because of the

extreme similarity of these events to the coups d'état of

other times. Fortunately, the country’s democracy was

recovered through its institutions.

The statements made by the representative of the

unlawful regime in place in that State at the time of the

public hearing on September 28, 29, and 30, 2020, clear up

any doubts as to the particular motivation behind the

advisory opinion.

It cannot be ignored that this regime was established in

response to an election called into questioned by one of the

candidates and with international intervention, by the way,

very unfortunate. Under that regime, unarmed civilians were

killed, citizens were kidnapped, armed groups operated that

raided homes, the rights of people were ignored by refusing

exit for one year to people under diplomatic protection,

threats were made of violating the immunity of diplomatic

headquarters, to the indifference of the police, and people

were arbitrarily deprived of liberty, to the point of

endangering the lives of some people and leading a

constitutional government official to lose her pregnancy,

among other very serious human rights violations. These are

facts that are currently being investigated by the judges of

that State.

At the time, and with good reason, the Court found the

advisory opinion requested by the Secretary General of the

OAS based on the impeachment of the President of Brazil

inadmissible because it referred to a specific and possibly

contentious case. The facts involved in the now-removed

lawless regime in Bolivia are undoubtedly potential

contentious cases.

I could conclude my opinion with this first observation,

but given that the reasons that lead me to consider this

advisory opinion inadmissible are not limited exclusively to it

and I rather believe that this reason coincides with the limits

set on the Court by the Convention, I must also delve into the

remaining considerations as to why I depart from the

enlightened and well-intentioned responses of the majority

of the Court.

5. Competence according to the historical legislator

When interpreting any law—national or international—

the so-called will of the legislator is usually invoked, although

in general it is not precisely understood who is the subject

invoked, with the subject often being little more than

mythical.

It is questionable, but if that expression is intended to

refer to the historical legislator—that is, a person of flesh

and blood—it will always be difficult to know what the

members of a parliament or legislature thought, given that

they generally vote with their party’s caucus, and, as is

natural, many of them are barely informed of the content of

the laws they pass, particularly when it comes to texts with

highly specialized technical details. In such cases, the author

or authors of the project are considered to be the historical

legislator, as in the case of codes.

Thus, for international treaties, and especially

multilateral ones, the real authors are those who write them

and not the parliamentarians or the ministers and executives

who sanction and promulgate the laws that ratify them in

their respective countries.

In this regard, it is known that these instruments are

the result of long processing with the involvement of national

and international experts, seasoned diplomats, legal

departments of the foreign ministries, and academics who

influence the texts. The preparation of treaties and other

international instruments is never the result of improvisation,

although those who ratify them in each State may not know

the details of these complicated processes. The

sophisticated technical expertise and political experience of

several of the jurists who took part in the preparation,

drafting, and approval of the American Convention on Human

Rights is indisputable.

The responses of the majority of this Court delve widely

into international treaties and instruments, the texts of

which say nothing about reelection without term limits of

those holding executive power in the States.

It is unthinkable to imagine that this issue has been

ignored inadvertently by those we can consider as its

historical legislators, who drafted these texts so

meticulously and in detail, with care paid even to the verb

tenses and the smallest details of semantics and punctuation.

The only possible conclusion of the journey through

these instruments and the subsequent verification of the

silence on unlimited re-election is that omission of its

consideration was on purpose—that is, if the qualified and

true historical legislators did not mention it, this was because

they did not want to, that is, they did not wish to prohibit it.

6. Competence under international law

But the value of the will of the historical legislator is

relative, because—as Gustav Radbruch once pointed out—

upon enacting the law, they stay on the dock while the law

sails free, and it is impossible to rope a ship back in that is

already sailing the seas. What is fundamentally needed is to

interpret the text, get on board the ship and see where its

helmsman is pointing or in which direction the wind is driving

its sail.

In principle, at the level of the primary exegetical

analysis, we can verify that the law says nothing about the

reelection without term limits of the holders of executive

powers. If it says nothing, the issue becomes whether the

interpreter is entitled to infer from the text a prohibition

applicable to an institution in States’ political systems that is

not explicit.

Therefore, it should be noted, first of all, that in the

absence of an explicit reference, the prohibition should be

the result of an extension of the legal text that could take

two different routes: based on a broad interpretation or,

more radically, on an application by analogy.

Broad interpretation is when the flexibility of the legal

text allows it to be given its greatest semantic breadth.

Application by analogy, on the contrary, exceeds the semantic

resistance of the legal text and consists in adding to its

wording an assumption or hypothesis not contemplated in it.

In the final analysis, application by analogy is not

interpretative but rather supplementary.

7. Application by analogy

In order to conclude that a prohibition on unlimited

executive reelection is contained in the American Convention

and in some or all of the instruments referring to the form

of government that the Court must enforce, one must

acknowledge that this would entail the inclusion of an

unconsidered scenario—that is, an application by analogy of

the legal text must be made, because none of these

instruments allows for a broad interpretation.

This is based on the fact that the only claim of broad

interpretation that can be made, based on the prohibition of

an indefinite term, is not admissible. In this regard, it could

be argued that it is a broad interpretation considering that

the prohibition of reelection without term limits would be

contained or could be inferred from the prohibition of

indefinite tenure or indefinite term.

It is not methodologically correct or prudent to argue by

forcing a text to the limit of confusing the very different

characteristics of two institutions that are completely

different and have always been perfectly identified—even in

our own region—for well-known historical reasons dating back

quite a long time, to the criticisms made of Bolívar's

constitutional project for Bolivia, which, by the way, was not

being established for himself, but for the unfortunate

Mariscal Sucre.

It is more than obvious that an unlimited presidency or

term is decidedly and clearly undemocratic, since it

presupposes the exclusion of periodic elections and,

therefore, also of reelection.

What international law prohibits is the old lifetime

presidency, an institution that, by definition, excludes

reelection and that was always known to trace its roots to the

Napoleonic title of First Consul for Life, a title of which I do

not think our region has seen cases other than that of Gaspar

Rodríguez of France in Paraguay in the 19th century and that

of François Duvalier in Haiti in the last century.

Unlimited reelection, for its part and by definition, is not

possible with the above situation and, therefore, substantially

different. It is not necessarily incompatible with democracy

because it inevitably requires periodically submitting the

executive to a popular vote, a vote that is not always won, even

if executive power is exercised or has been

exercised, as proven by the North American cases of Ulysses

Grant, who tried for reelection in 1880, but his party chose

not to nominate him for a third term, or the case of Theodore

Roosevelt, who ran for a third term and lost to Woodrow

Wilson.

But not even all the presidents who ran for a second

term—trying to run while exercising executive power—

succeeded; there were only ten in the entire history of the

United States. Neither did all the presidents who sought a

second term in our region succeed: the case of Macri, who ran

for a second term in my country, is an eloquent demonstration

that the people are the ones who decide, despite support

from the media oligopoly, a prevaricating and obedient

judiciary, an intelligence service that persecuted and

criminalized opponents, and national and transnational

financial power closing ranks and pushing the candidacy of the

purest of its local agents.

All this makes it possible to verify that not everyone who

governs wins a second term, even less-so a third term,

provided, of course, that there are non-fraudulent elections,

which is what this Court and all international organizations

should really be focusing on, while being careful not to throw

in with any opposition figure who, just because they lost,

screams victim and alleges fraud to evade the decision made

at the polls or weaken the legitimacy of the winner, as in the

American case of Trump. Unfortunately, such care is not

always observed, even by international agencies.

The only president of the United States who served a

third term was Franklin Delano Roosevelt, and he was even

voted in for a fourth term, which he could not serve because

he died. Of course, no one would dare to call Roosevelt an

autocrat. Also, it seems hardly admissible that the

Constitution of the United States, pursuant to the historical

text prior to its twenty-second amendment—that is, the text

in force from March 4, 1789 to 1951 and that, furthermore,

was a model for almost all of our republics—would have been

today, based on the issue raised now, considered in violation

of the American Convention on Human Rights and the rest of

the aforementioned instruments.

8. Subjects that do not allow for application by

analogy

or broad interpretation

The American Convention contains flexible texts, such

as the one referring to progressive development, but not all

subjects allow for broad interpretation of their provisions,

and less so application by analogy to cases not provided for.

There are matters in which the rigidity of the text must be

strictly respected, due to the very nature of international

human rights law.

When the source of international law is treaties, it

should be noted that, unlike other branches of law, it is not a

matter of norms emanating from a higher body such as a

national parliament. Its power is due rather to limitations on

the sovereignty of the States that they themselves cede in

the exercise of their respective sovereignties.

Therefore, when the treaties do not allow for

interpretive flexibility, judges cannot force their wording

without affecting the sovereignty of the States that ratified

them, the treaties being limited to what the States yielded.

In terms of Human Rights, as is known—and leaving aside

background is not broadly applicable to this branch of law —

the history of international law in this regard began in the

last postwar period. Until then, international law dealt with

relations between States, but not with relations between

States and the inhabitants of their territories.

The negative cultural experience of humanity, especially

rising to its worst with the atrocities of that catastrophe,

but fed secularly by the terrible crimes on all five continents,

generated a special sensitivity in the postwar period,

preceded by the Atlantic Charter, by the Declaration of

Philadelphia of the International Labour Organization, and by

four-time reelected President Roosevelt’s four freedoms

speech.

The matter in question here in this advisory opinion—

that is, what is really under discussion and sought for

discussion on this occasion—is not so much the right of a

person to exercise the executive power of a State, which,

although not without importance, has a secondary relevance

to the people’s right to vote for whom they want to govern

them.

What is under discussion here is nothing less than the

very exercise of popular sovereignty, the right of the people

who, by definition, are the true sovereigns in any democracy—

that is, what is being addressed directly is the most

elementary foundation of the democracies of all countries of

the world that have opted for this system.

In this respect, interpretive flexibility cannot be

permitted. Rather, the interpreter must adhere with all due

precision to the limitations established by the letter of the

treaty, since the rest is reserved for the people to exercise

their sovereign power.

Of course, application by analogy is even less allowable.

Leaving aside far-fetched cases, such as the analogical

punishment of religious circumcision through analogy to

abortion in the Soviet Union, when one opts for integration in

a more rational way, one appeals to the argument of the

greater reason—that is, if one is considering a less-serious

situation, it is understood to include the more-serious less-

serious situations, as is the case with prohibiting reelection

without term limits but not an unlimited term length, a

situation in which, inverse as we have here, the argument of

greater reason would also not apply.

9. The limitations of international law

It is clear that international law establishes limitations

on States’ forms of government when they commit to

adopting the democratic system. However, they are strictly

limited and narrowed to what is essential for all plural

democracies.

Just as a lifetime presidency would not be admissible for

being undemocratic, neither would a so-called single-party

popular democracy be admissible, since the democratic model

that must be respected according to the wording of the

Convention is a plural democracy.

It is obvious that a so-called plebiscitary democracy,

which has nothing to do with democracy, would not be

admissible either, because it would eliminate respect for

minorities, preventing them from one day becoming

majorities, while at the same time damaging all institutions,

as I expressed at the time in response to the request for

provisional measures in the case of the referendum of

President Lenin Moreno in Ecuador.

These limitations are imposed because otherwise there

is no democratic system, since these limitations are its

essence and the ones that the Court inevitably has the duty

to enforce.

Furthermore, it cannot be ignored that every

constitution, as Peter Häberle points out, is integrated into a

historically-conditioned culture, as it cannot be otherwise,

since law—and in particular constitutional law—is always a

social, cultural, political, and historical phenomenon. Of

course, these obvious limitations that the States agreed to

in the treaties are none other than the ones that reflect the

continent’s culture, tradition, and historical experience.

It is clear in these instruments that States are limiting

their sovereignty in matters of government systems, but

when it comes to the exercise of nothing less than the

sovereignty of their peoples, the republican and democratic

sovereign of each of the governments of the States that

ratified the treaties, the nature of the matter imposes its

strict interpretation, prohibits any broad interpretation,

and—with much more reason—its application by analogy, such

as by introducing a prohibition to an institution on which all

instruments keep the most absolute and hermetic of silences.

10. Internationalization of

constitutional law

From the perspective of the internal rights of the

States, the limitations they have placed on themselves by

signing the treaties entail the limitation of their sovereignty

in terms of their power to establish forms of government—

that is, they have limited it to some extent through the so-

called internationalization of constitutional law.

There is no question that, in principle, each independent

State is sovereign and has the right to whatever form of

government it chooses. What distinguishes an independent

State from a colony is its self-governance. In this regard and

at the international level, the principle of non-intervention

applies as a general rule.

However, in the exercise of their own sovereignty, the

States of our continent committed themselves with the other

States to limit their constitutional sovereignty.

Given that this constitutional sovereignty derives from

their own status as independent States, the degree of

internationalization of their constitutional law can only be

limited to the strict extent of the limitation that they had

agreed to in the respective treaty: it is not conceivable that,

by means of a treaty, an independent State would leave its

sovereign right to self-government to the mercy of anyone,

as this would mean leaving the attribute that is the essence

of its status as an independent State undefined or placing it

in the hands of third parties.

Consequently, any extension of the transfer of

sovereignty or limitation of its independence by way of

application of the text of the treaty by analogy would mean

moving upon the constitutional sovereignty of the States,

that is, on an attribution that is inherent to its very status

of independent State, which would unquestionably be a

violation of the elementary principle of non-intervention, that

is, in some way, a partial but serious disregard of the

independence of the States.

11. Factual impotence

Although the aforementioned legal reasons take

precedence, it cannot be ignored that the sound and generous

aim of the majority of this Court, in terms of the facts, is

absolutely unsuccessful and in any case irreparably doomed to

failure.

The struggle for power that is always a part of political

activity is, like democracy itself, sometimes flawed and even

downright bad, but so far nothing better has been invented.

Therefore, anti-politics or the rejection of politics is a

sign of a reactionary and always authoritarian attitude,

although it is sometimes directly totalitarian, since—as is well

known—the totalitarian regimes between the wars were

based on the ruthless criticism of the plural democracy of

parties: they tried to supersede the departing parties,

invoking a desire for a supposed single-leader organicist

nation terminating in the all-embracing will of a conductor in

accordance with the irrational Führerprinzip or other more

or less analogous ideological equivalents.

But the rejection of antipolitical totalitarianism does not

mean rejecting that politics is often degraded to a game of

pettiness, opportunism, disloyalty, deception, and lies that

crosses even the most basic ethical lines, deploys unusual and

contrived justifications, and uses all manner of tricks.

I am sorry to say that it is impossible to foresee all the

deceptive twists and turns it can take because the

imaginations of the competitors sometimes play host to an

incredible wealth of evil creativity, impossible to overcome

with legal provisions or the good intentions of judges. It is

impossible to foresee all the situations that may lead to the

establishment or continuity of a regimen.

Taking a look at history, one might think that prohibiting

reelection without term limits would have prevented the

Mexican porfiriato, but with absolute security it can be said

that it would not have prevented the oligarchic republics of

our region. It may have the capacity to prevent an individual

from establishing an autocracy, but not a clique brought

together by its interests in exploiting the labor of a people.

In some of our countries, nothing prevented the

consolidation of a social minority, a small group, formed

around the same landowner interests as Porfirio Díaz,

supporter of the same racism and the same positivist

philosophy, nourished by a biological reductionism identical to

that of the group of scientists, equally or more genocidal

toward Indians and an excellent teacher of electoral fraud,

persecutor of opponents and even oppressor of his people.

However, this autocratic group, considered racially superior

to the people, was extremely respectful of nonreelection and

its members took turns as the executive, resolving in friendly

gatherings between elegant men whose turn it was to hold the

office.

This is precisely what happened in Argentina with the so-

called bovine oligarchy, which murdered the Patagonian

Indians and shot workers, or with the Brazilian Velha

Republic, whose army massacred the thousands of starving

followers of Conselheiro in Canudos.

However, in both cases, a meticulous and absolute

respect was shown for the no-reelection rule, not to

guarantee democracy—which did not exist—but to take turns

holding power, passing it back and forth between fellow

members of select Europeanized clubs.

The imaginative legal attempts to prevent anyone from

getting around the prohibition on reelection without term

limits also led to prohibiting the people from voting for

relatives and partners of presidents, as provided for in some

constitutional texts, based on some experiences with

Trujillo’s tricks or the case of the Somoza family. But is this

not a violation of the human rights of the people or the

relatives? Why can a person not be elected by their people

just because their sibling is president? On what basis can

they be deprived of the full exercise of their citizenship? On

the basis of brotherhood? Marriage? Siblings and even

spouses can belong to different and opposing parties. But

even if one were to allow for this exception, there could

always be the case of two brothers who pretended to oppose

each other in order to secure the majority and minority of

the legislature and end up leading all the deputies.

The perverse imagination in politics is unpredictable, and

preventing it by law will only lead to extreme and indefensible

casuism. Also, given the rapid dynamic of situations that are

permanently in flux, we can also never know when the autocrat

will employ their own casuistic measures to remove the

opposition from an election.

Unfortunately, no democratic political system is so

perfect that it has no crevice through which autocracy can

leak, even to the point of totalitarianism, despite the

strenuous efforts of institutional engineering theorists. At

the same time, political systems that at first glance seem

extremely imperfect and easy to pierce make elections and

democracies possible.

Let us not forget that Nazism arose in a parliamentary

republic, and it did not even bother to formally repeal the

Weimarer Reichverfassung. Although the Statuto Albertino

or Statuto Fondamentale della Monarchia di Savoia of March

4, 1848 was more flawed, it was ultimately a parliamentary

monarchy and, nevertheless, fascism emerged. Kelsen's

admirable and refined Bundes-Verfassungsgesetz did not

prevent Dollfuss's coup either. Conversely, the United States

Constitution, presidential and allowing indefinite reelection,

resulted in the election and re-election of Roosevelt.

Everything is unpredictable in the face of power and the

twists and turns of politics, and naturally, by definition, it is

impossible to predict the unpredictable. Legal training

inclines one to prefer linear and geometric shapes in which

politics does not fit, as it is a living and mimetic organism that

is fascinating precisely because it is never known for sure if

it will birth a scorpion or a butterfly.

12. Risk is not danger, and danger is not injury

Without prejudice to the foregoing reasoning, a thought

should be added regarding the question of harm, risk and

danger. The objective of finding that allowing reelection

without term limits under their domestic legal systems means

States are not complying with their treaty obligations is to

prevent the risk of a human rights violation. Unlimited

reelection would not, therefore, be a human rights violation—

that is, a violation of these rights—but rather poses a risk of

eventual violations, and not even a danger, because it would

not be necessary for the risk to lead to a certain situation of

danger of these violations. The alleged failure to comply with

treaty obligations would be based on a presumption of risk

that would not admit evidence the contrary.

Usually, the presumptions are based on what tends to

happen according to experience, but they are still

presumptions, and what tends to happen does not always

happen.

Above all, the very existence of the risk on which the

presumption is based is extremely debatable, according to

this Court’s own lengthy experience. Effectively, the Court

repeatedly sanctions States, often for grave human rights

violations, some of which involve the loss of many human lives.

Generally, the States sanctioned do not allow reelection

without term limits in their internal law, and some do not allow

reelection at all, nor are the human rights violations

committed by presidents serving for more than two terms.

Therefore, according to this Court's own experience, it is

more than likely that prohibiting indefinite reelection will not

have any impact on the frequency and seriousness of the

human rights violations committed by our States.

In any case, according to the respectable answers given

by the majority, it would be presumed juris et de jure—that

is, without admitting evidence to the contrary—that there is

a mere risk (not rising to a danger) that a people would not be

duly represented in the event of reelection without term

limits, even though it is the people themselves voting for its

executive.

This statement contains a contradiction, because if the

people elect—of course in elections conducted without fraud

or proscriptions—that is, if they really choose their

executive by voting fairly and by democratic majority, it is

not explained how they could possibly not be represented by

the one they elected.

The only way to resolve this contradiction is to take for

granted—to presume—that when a people votes for its

executive for the third time, it is choosing wrongly, making a

mistake, because the executive is cheating and, therefore,

this Court would decide to prevent it from making a mistake

or from being deceived by them or, furthermore, from

running the risk of making a mistake or being deceived. In this

regard, the Court would take on the role of caring for,

guarding, or protecting the peoples of the continent to

prevent them from running the risk of making a mistake or

being deceived when voting.

Obviously, this means that the people must be provided

with assistance because after two terms of one president,

voters experience a certain degree of incapacity that

requires this protective assistance. It does not seem

reasonable to conclude that the American Convention

empowers the court to play this role of protecting the

peoples of the continent.

There are many other ways in which one can confuse or

deceive an electorate before an election. Völkisch or mob

political tactics, which are based on prejudices and deepen

them, are a clear case of deception. The lies about the

candidates, smears that gratuitously accuse them of crimes

or behaviors or totalitarian ideologies, false ethical

accusations, and many other tactics are common in electoral

campaigns, despite being political dirty tricks.

But it would be extremely dangerous for this Court,

competent to sanction the States that commit human rights

violations, to assume jurisdiction to prevent all potential

deception or ploys frequently used to get votes.

13. Risk prevention has no end

Some time ago in general law, due to technological

developments, people began to talk about the risk society, and

from there some deduced the need to intervene legislatively

before harm was caused, not even danger, arguing that it was

more effective to prohibit and sanction conduct that does not

do harm to rights or even lead to the creation of dangerous

situations but poses the risk of causing harm to rights.

This could clearly lead to a true form of suffocating

totalitarianism across the entire social liberty space because

there is practically no behavior that cannot be classified as

risky, depending on the imaginative capacity of each legislator

and their personal fears. In the Roman Empire, the

manufacture of purple fabrics was severely punished because

it was an imperial color, and therefore, if someone

manufactured them without authorization from the emperor,

they ran the risk of been seen as participating in the planning

of a coup d'état.

Risk prevention is endless, since there are close, distant,

and remote risks, and assessment will always depend on

imaginative capacity and the individual—even paranoid—fears

of each evaluator.

In today's technological society—and as has always been

the case in politics—there is always a risk of cheating and

fraud. If the Court assumes this competence of protecting

the peoples, which I do not think falls to it in any way, it

treads a difficult path without end, at least no happy one.

In democracies, as in traffic, there are risks that the

law must tolerate, otherwise the traffic itself would have to

be stopped, which does not mean that those who drive while

intoxicated should not be punished. The risks are endless

because, inevitably, we always run a certain degree of risk,

both as individuals and as the people.

14. The preventive role of the Court

The above does not mean rejecting that the Court plays

the important role of preventing human rights violations,

including violations that are attributed here to the institution

of reelection without term limits. Based on the claim, even

endorsed here by the majority of the Court, that respect for

human rights is guaranteed by protecting the rule of law and

human rights, sanctioning violations thereof in a timely and

just manner, is precisely the means of dissuading States and

preventing other violations, as they will abstain from

committing them to the degree that they have certainty with

regard to the existence of an effective international human

rights jurisdiction that will hold them accountable.

Notwithstanding the foregoing, the due guarantees of

non-repetition included in most of the Court's judgments are

also preventive, as are the appropriate provisional measures

that the Court may order.

Since the international human rights jurisdiction is

effective, one wonders what reasons there would be to

prohibit a people from voting for a president who wants to

stand for popular reelection for a third term, within the

framework of a State that does not persecute opponents,

does not have political prisoners, does not systematically

violate human rights, respects freedom of opinion, does not

ban parties or candidates, whose elections are clear and

transparent, especially if they want to vote because in that

society, the Gini coefficient and poverty and unemployment

rates are decreasing and GDP is increasing. It cannot explain

why such reelection should be considered a violation of the

American Convention and protect the people—assuming they

can be deceived—by preventing them from voting for that

candidate.

In the absence of these conditions, as if they did not

exist in other countries that do not allow reelection without

term limits, what is lacking would be the prevention of human

rights violations, meaning that the Inter-American system

itself is failing with regard to its sanctioning and therefore

preventative function.

It follows from the foregoing that the best and most

effective way to prevent human rights violations is to improve

the system itself, a system that should enforce upon the

State the proper operation of its national judiciary, which

should punish the violations committed by ordering an end to

arbitrary deprivation of liberty, limitations on freedom of

expression, political prisoners, persecution of opponents, etc.

None of this depends on whether or not there is reelection

without term limits, but rather on the proper functioning of

our regional system. If an autocracy is established in the

region, it is not because of reelection without term limits, but

because the system was not efficient enough to prevent it.

In short: the effectiveness of the inter-American

system is the only and best key to prevention. Toward this,

processing times must be shortened for complaints submitted

before our bodies, ordering provisional measures by the Court

in urgent cases and especially when human life is at risk, and

adequately sanctioning—within a reasonable period of time—

the States that violate the human rights of their

inhabitants.

15. The current dangers facing our

democracies

Based on the difference between risk as a possibility

that danger will materialize and danger as the materialization

of risk, there is no doubt that the democracies of our

countries only run risks, and that some of them are in danger,

of which browsing through current public information

provides enough evidence.

In no way is there at this time any danger that could be

attributed purely to reelection without term limits of

executives that, at the very most, could be viewed as

something remote and not materialized without, in any case,

either with or without reelection without term limits, as we

have indicated, the danger deriving from the impunity of

States that commit human rights violations.

First of all, the current dangers to the democracies of

the continent, unquestionably materialized in a number of

cases, include the persecution, imprisonment, and

criminalization of opposition politicians by illegal groups

comprised of some prevaricating judges, instigated by the

executives—generally not reelected without limits and not

even a second time—with the complicity of intelligence

service agents and the operators of hegemonic, monopolistic,

or oligopolistic media with the clear objective of threatening

and banning certain political candidates and parties, thus not

only disregarding the rights of minorities but even majorities.

Second in the current dangers facing our democracies—

not completely independent from the above—is limitation on

freedom of expression, uni-polar discourse, and the

construction of a homogeneous reality as a result of media

monopolies and oligopolies through total deregulation of

these media, which has left them exposed to large

corporations that accumulate TV channel concessions,

newspapers, radio stations, and electronic services without

any legal limit on their accumulation, in a way that no

respectable democracy in the hemisphere would allow.

This media concentration is not compatible with the

plural democracy model that we all aspire to on the continent

because these enormous and economically powerful media

corporations operate, in reality, like unified parties, capable

of disorienting and promoting greater errors as a result of

the complete lack of ethics with which they disseminate fake

news, including on health, encouraging noncompliance with

health measures, recommending with impunity the ingestion

of remedies that are fake and even toxic in the current

emergency our region and the world are facing, endangering

human lives.

Additionally, the monopolistic hegemony of the media

affects our national cultures, deprives minorities of a voice,

gives a voice to wild extremists and even neo-Nazis, and

generates unrest in the population with fake news of all kinds.

They do not resort to public lynching of those they consider

bothersome, they do not kill as in times of dictatorship for

reasons of national security, but they annihilate the honor of

whomever they want with total impunity, destroying public

figures like Túpac Amaru in the plaza of Cusco.

Third, but perhaps first, because the others in some

way derived from this, fraudulent administration of the

States’ economies has been found, financial manipulations of

abusive indebtedness to the tune of billions of dollars that

were not invested in the country but rather went into foreign

accounts on the pretext of capital flight, when in reality,

there was no obstacle to the unrestricted exit of foreign

exchange, such that in the end, the State had in its

possession only the papers indicating that the debt had to be

paid.

This crime of political economy undermines the property

of the people, who must repay astronomical debts. It is a

macro-crime that is agreed to via psuedo-contracts, that is,

agreements that lack an outside authority that can guarantee

the right of the parties—that is, the lender and the

borrower. Instead, the borrower is subjected to the

jurisdiction of the lender, which, in addition, demands

budgetary adjustments be made to reduce investment in

social issues, education, health, social security, etc., along

with repealing labor law in borrower States, so called

flexibilization.

Added to all of the above is the extortion of the

holdouts, who take advantage of the default caused by the

crimes of political economy to purchase devalued debt, await

the renegotiation with the majority of the lenders on the

sidelines, and then demand face value before the lenders’

courts. This is a criminal space made possible by the lack of a

rational procedure for States that fall into arrears or

default.

As a result of all of the above—that is to say of

phenomena that are not totally independent, but are closely

linked—not only are our democracies in serious danger, but

the human right to progressive development is openly

violated, as poverty rates go up, small and medium-sized

companies go bankrupt, unemployment rises, domestic

consumption and tax collection decrease, GDP falls, and

almost the entire region has the highest Gini coefficients in

the world, all of which costs many lives due to the deaths

caused by insufficient vaccination and health campaigns, non-

universal health care, suicides, high homicide rates, domestic

violence and femicides, police repression and lethal violence,

job insecurity, and roads that are inadequate to the vehicles

imposed upon us.

All these current dangers and damages have already

emerged, without any guarantee of discontinuance and non-

repetition, and they are what injure and threaten our

democracies at this precise continental moment, in a much

more acute and immediate way than the eventual results of

reelection without term limits, given that, if in any country,

with or without reelection without term limits, human rights

are violated, it is because those violations were not punished

in a timely manner and that impunity paved the way for other

equal or worse violations.

Nor is there any problem of reelection without term

limits in the State whose situation led to this advisory

opinion, which happily overcame its moment of crisis

democratically.

16. The risk to human rights

Finally, taking into account that within the limits to the

internationalization of the constitutional law of our States,

neither the American Convention nor other international

instruments mention reelection without term limits and that,

therefore, its application by analogy means advancing

international jurisdiction to supersede the sovereignty of the

peoples beyond what has been agreed to, it is my

understanding that to the above considerations must be

added a serious concern, this time about the negative

consequences that a step down this path may have for the

future of international law of the human rights.

International human rights law universally made positive

the basic norm of a duty to respect and treat every human

being as a person (from which all the more specific norms on

the matter are ultimately derived), sowing a seed of planetary

citizenship.

The facts leading to this date back a long time, driven

by the pressure of the accumulated experience of

victimization by mass crimes that built a true negative

cultural heritage of humanity, beginning along with the world,

if by that we mean the moment when global relations began

as a result of the knowledge of the existence of all humans,

that is, at the end of the 15th century.

Millions of deaths piled up in the criminal experience of

this negative human cultural heritage until, those who up to

that moment and practicing the most ruthless colonialism, had

sown death in America, Africa, Asia and Oceania, entered into

a brutal conflict and one of them did not hesitate to use the

same colonial methods, but in an even more shocking way,

because to commit them, they used the industrial technology

of mass production, in this case the production of deaths.

This blew up the armor of denialism and rationalization that

concealed the entire experience of the genocides stretching

over almost five centuries and brought to light the entire

horrifying negative culture of humanity.

International human rights law was not born from

reason, but from fear that imposed a minimum of rationality

and brought out with all its horror the totality of the negative

cultural heritage of humanity, until that moment denied or

normalized through disparate and wild discourse,

ethnocentric ideological principles, legitimizing an invented

colonizing civilizational superiority that, of course, also

quickly fell silent in the midst of it, because its supporters

were quickly silenced.

The path of international human rights law, like that of

all law, goes from the duty between beings, with the

difficulties that entails, to becoming an instrument of

struggle of the peoples. In this sense, a hopeful and

successful future awaits, for which it must be driven

forward, but knowing that it also has ideological and factual

enemies who are determined to obstruct the difficult path

toward its increasing effectiveness.

Not only is its effectiveness hampered at the factual

level, but also attempts are made to neutralize its realization

by way of the heinous and malignant perversion of its own

foundations, when the aim is to ideologically manipulate it to

turn it into a new ethnocentric discourse of alleged cultural

superiority or civilization, legitimizing also new stages of

geopolitical submission. To put it more clearly, the most

perverse way to neutralize it is to distort it as a discourse of

liberation of the peoples, to degrade it into a new discourse

of domination. This is the greatest risk that in today's world

weighs on the future of international human rights law.

To the extent that we overstep the limits on State

sovereignty—clearly indicated in the letter of the provisions

of international treaties—to limit the sovereignty of the

peoples beyond what they have agreed to, on the argument

that they can make mistakes, a protective function is

assumed that easily leads to ethnocentrism, therefore

running the true risk of distorting the liberating nature that

is the essence of that branch of international law.

For all the aforementioned reasons, I conclude that this

advisory opinion is not admissible.

I so vote.

Eugenio Raúl Zaffaroni

Judge

Pablo Saavedra Alessandri

Secretary