The Strategic Use of Advisory Opinion Requests in Colombian-Venezuela Bilateral Relations

[Nicolás Carrillo-Santarelli is a Colombian lawyer. He works as a researcher and lecturer of Public International Law at the La Sabana University, Colombia.]

The morning of the 20^th of October, Colombian media informed that the State of Colombia submitted an advisory opinion request to the Inter-American Court of Human Rights – which is not available in the webpage of the Court yet. According to the news, Colombia seems to ask the Court about the compatibility of the possibility of someone being endlessly reelected to the presidential position with the Inter-American human rights standards. After having announced this via Twitter, a very interesting conversation took place in the so-called “legal tweetverse”, which motivated me to write this entry – and sheds light on the impact of the possibility of contacting and exchanging ideas with colleagues on the internet.

On the one hand, as Alonso Gurmendi pointed out, in case the Court decides to issue an opinion, it will be interesting to read what it has to say and whether it will have any disagreements with what Bolivian judges have said on the matter concerning Evo Morales – and the potential backlash this may have in Bolivia and elsewhere. Interestingly, in an interview a Colombian State agent suggested that the request may have something to do with what is happening in different States in the Americas, including but not restricted to Bolivia – also suggesting that it may be relevant in regard to Venezuela and Nicaragua as well. Politically speaking, this is an especially contentious issue after allegations of fraud in the Bolivian elections.

From a legal point of view, it is interesting to note that justice Macario Cortez of the Bolivian Constitutional Court told the media, after the Court’s decision on reelection, that political rights prevail over Constitutional limitations of the number of times someone can be elected or run for president. Accordingly, the issue seems to be prone to an analysis under, at the very least, article 23 of the American Convention on Human Rights on the “Right to Participate in Government”. But could the discussion be examined in light of the margin of appreciation doctrine, or be rejected because of the possible political motivations behind Colombia’s question? Let us examine these and other aspects.

It must be recalled that the Inter-American human rights system’s main bodies have been reluctant to endorse the “margin of appreciation” doctrine. Hence, while it could be employed to explore the issues Colombia raises –whether successfully, or not, is a different question altogether –, the doctrine is unlikely to be employed if the Court ends up issuing an advisory opinion – other matters could have also been examined in its light. On the other hand, Hélène Tigroudja highlighted the fact that this is the second time in the year that Colombia presents an advisory opinion request to the Inter-American Court, the first of which dealt with the obligations of States that have withdrawn from the American Convention on Human Rights.

In my opinion, it is no coincidence that both requests address issues that are pertinent in relation to conduct or situations of ideological rivals in the region or related to the neighbor that is posing greater challenges to Colombia, namely, Venezuela. Indeed, it cannot be forgotten that Venezuela (regrettably) denounced the American Convention, which triggered, amongst others, the concern of the Inter-American Commission on Human Rights. In the present context, there are certainly migration dynamics with impact on Colombia – it should not be forgotten that those who flee deserve solidarity given the problems they faced and forced them to leave with almost nothing, and that some of them may well be refugees in light of the broader notion found in the Cartagena Declaration; neither should one ignore that in the past Venezuela welcomed Colombians and many others with open arms. But in addition to this, it cannot be ignored that there are allegations that some combatants of Colombian non-state armed groups may have “sanctuary” in Venezuela or operate from its territory.

If my suspicions are correct, we would be witnessing a strategic use of advisory opinions – in this event in the context of bilateral relations – that may seek to achieve the objective of obtaining favorable pronouncements that contribute to exerting pressure on a third party or help to garner the support or generate the reaction of others in relation to the situation of such a party. In other words, there would be some sort of “lawfare” use of requests in order to make up for the weakenesses or vulnerabilities of some actors by means of the interaction with international law in the furtherance of a given agenda – how spot on was McDougal in many of his observations and descriptions.

This may well be an effort that seeks to work in addition to those of the Lima Group that have attempted to exert legal and political pressure on the Maduro regime via State referrals in the International Criminal Court (see here), actions before the OAS and the Security Council, and other initiatives, including some resorting to the Inter-American Treaty of Reciprocal Assistance. Institutional law is thus being used to bring about political – and human rights, or so the States involved claim to seek – changes. Quite likely, State agents of the Lima Group are concerned not only with the wellbeing of Venezuelans, whose rights are certainly abused, as a United Nations report indicates, but also to achieve political objectives of their own.

My inkling on the motivation behind Colombia’s request also has to do with the fact that I consider that Colombia has attempted in the past to employ advisory opinion requests in ways that have sought to strengthen its position vis-à-vis other States, such as Nicaragua. This is something that other authors have also held, including Mónica Feria-Tinta and Simon C. Milnes.

That being said, I do not consider that the strategic and instrumental use of advisory opinion requests by Colombia or other States amounts to something negative in itself. This is because of the following three reasons. Firstly, it is a peaceful and institutional action that permits debate about the merits of the arguments, which is certainly preferable to wrongful acts that seek to achieve the same policy objectives – needless to say, they remain wrongful regardless of whether they are employed alone or covertly in conjunction with licit initiatives.

Secondly, the Inter-American Court has shown in the past that it is above the petty or legitimate disputes between States in the exercise of its advisory function. As was said by Mónica Feria-Tinta and Simon C. Milnes in the article I linked above, “[t]he IACtHR deftly defused that aspect by concentrating on the issues of principle and avoiding expressing any concrete views on particular instances of pollution sources or their victims”.

Thirdly, and in connection with my previous point, if and when the Court decides to issue an opinion, it exercises its competence in a way that examines issues that are not limited to the specific strategic intentions of the actor that asked for it. In this way, the Court carries out a promotion function by clarifying points and providing interpretations that help States to comply with their human rights obligations. All such clarifications are welcome and can have a greatly positive impact in the region if they are followed and integrated via control of conventionality or in any other way invoked by States or other parties.

In other words, requests provide the Inter-American Court with the opportunity to develop a case law that can be quite relevant for human beings. In regard to the ones that have been presented by Colombia, who can deny that questions on checks and balances, judicial and other guarantees, which form a triad with the rule of law and human rights in a democratic system, as the Court pointed out in its eighth advisory opinion, or on the human rights duties that States who have denounced certain treaties under treaty and customary law still have, are tremendously important for the sake of the respect and guarantee of the human rights of individuals, who after all should be seen as the protagonists of legal analyses, as judge Cançado Trindade has very well pointed out.

Finally, it is worth exploring whether the request could amount to an abuse of right. I do not consider this to be the case. In any event, claims that there is an abuse of right tend to be unsuccessful.  If there is a valid question with legal implications, it can be answered, too. I do not think that a “clean hands” argument would prosper either, because arguing that another party may have perpetrated abuses of its own says nothing about the questions it poses. Even if there are, as I think there are, political motivations behind the request, or if the issues it raises could be analyzed through a political prism, it does raise legal questions. If so, it is pertinent to answer them. Indeed, it is pertinent to ponder whether perpetuation in power is compatible with political rights and elements of a system that requires certain democratic principles and elements to be observed by OAS member States. Furthermore, it is worth recalling that in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and other pronouncements the International Court of Justice held that:

 The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. Moreover, the circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion.