I 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”).Footnote ¹

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

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

1. 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?

2. 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.

II PROCEEDINGS BEFORE THE COURT

5. Through notes dated February 17, 2020, the Secretariat of the Court (hereinafter “the Secretariat”), in accordance with the provisions of Article 73(1)Footnote ² 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.Footnote ³ Likewise, following instructions from the President and in accordance with the provisions of Article 73(3) of the Rules of Procedure,Footnote ⁴ the Secretariat, through notes of February 17, 2020, invited various international organizations and civil society and academic institutions of the region to submit their writtenopinions on the points raised for consultation by the aforementioned deadline. Finally, an openinvitation 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:Footnote ⁵

1. 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.

2. b. Written observations submitted by OAS organs: 1) Inter-American Commission on Human Rights, and 2) OAS General Secretariat.

3. 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; 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 orderFootnote ⁶—in accordance with the provisions of Article 73(4) of the Rules of ProcedureFootnote ⁷—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. 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. 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. 3) For the United States of America: Thomas Weatherall and Oliver M. Lewis, Office of the Legal Adviser, U.S. Department of State.

4. 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. 5) For the Inter-American Commission on Human Rights: Joel Hernández García, President, and Marisol Blanchard, Assistant Executive Secretary.

6. 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. 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. 8) For the Academia Interamericana de Derechos Humanos de la Universidad Autónoma of Coahuila, Mexico: Mrs. Irene Spigno, Director.

9. 9) For the Academia Boliviana de Estudios Constitucionales: Jorge Antonio Asbun Rojas, President, and José Antonio Rivera Santibañez, Vice President.

10. 10) For the Asamblea Permanente de Derechos Humanos de Bolivia: Amparo Carvajal Baños, President, and Lizeth Limachi Yapura, Lawyer.

11. 11) For the Asociación Civil de Estudios Constitucionales (ACEC): Mr. and Mrs. Pedro A. Caminos, President, and María Lorena González Tocci, Treasurer.

12. 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. 13) For the Centro de Investigación Jurídica Aplicada y Consultoría Integral, Sociedad Civil (CICACI): Mr. Jorge Alberto Pérez Tolentino.

14. 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. 15) For the Centro de Investigación y Promoción de los Derechos Humanos (CIPRODEH): Ariel Edgardo Díaz and Carlos Joaquín Méndez Quan.

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

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

18. 18) For the Clínica Jurídica en Derechos Humanos de la Universidad Santiago de Cali: Mayra Alejandra García Ramírez and Liliana Ambuila Valencia.

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

21. 21) For the Corporación Centro de Interés Público y Justicia (CIPJUS): Karen Daniela Rosero Narváez and Álvaro Cubillos Ruiz.

22. 22) For Defiende Venezuela and the Instituto de Investigaciones Jurídicas of the Universidad Católica Andrés Bello: Harold Miñarro Escalona and Jaiber Núñez.

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

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

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

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

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

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

34. 34) Álvaro Molinares and Luiza Tavares da Motta

35. 35) Alfredo Ortega Franco

36. 36) Amaury A. Reyes-Torres

37. 37) Andrés Figueroa Galvis

38. 38) Björn Arp

39. 39) El señor Carlos Eduardo García Granados

40. 40) Carolina Rodríguez Bejarano and Eudoro Echeverri Quintana

41. 41) Damian González-Salzberg

42. 42) Ayda Malena Imbacuán and Anderson Muñoz Buitrón

43. 43) Dolly Andrea Lugo Cortés and Elizabeth Duarte Cristancho

44. 44) Edier Esteban Manco Pineda

45. 45) Jihde Tatiana Hernández Gutiérrez and Alexandra Melissa Valdivia Salazar

46. 46) Harold Bertot Triana

47. 47) Ilka Treminio Sánchez and Juan Manuel Muñoz

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

49. 49) Juan Reynaldo Salinas Goytia

50. 50) Leonardo Rivera Mendoza

51. 51) Roberto Ogg Fábrega and Ainoa Prieto García

52. 52) Sergio Armando Villa Ramos

53. 53) Thairi Moya Sánchez and Víctor Rodríguez Cedeño

54. 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.Footnote ⁸ 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.Footnote ⁹

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.Footnote ¹⁰

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:

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 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.Footnote ¹¹

17. Likewise, Articles 70Footnote ¹² and 71Footnote ¹³ 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.

IV 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.”Footnote ⁴⁰

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.Footnote ⁴¹ 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.Footnote ⁴² 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.Footnote ⁴³

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.Footnote ⁴⁴

47. In effect, the recitals of the Resolution of the Ninth International Conference of American States adopting the American Declaration establish as follows:

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,Footnote ⁴⁶ 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.Footnote ⁴⁷ 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 rights.Footnote ⁴⁸ In this sense, for example, Resolution XXVII of the Tenth Inter-American Conference, held in Caracas in 1954, stated that:

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.”Footnote ⁵⁰

53. The relationship between human rights, the rule of law, and democracy was embodied in the Inter-American Democratic Charter.Footnote ⁵¹ 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.Footnote ⁵²

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.”Footnote ⁵³ In this regard, it recognizes that “Democracy is essential for the social, political, and economic development of the peoples of the Americas.”Footnote ⁵⁴ 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.”Footnote ⁵⁵ 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 thatdiplomatic 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 oftwo thirds of the member states.”Footnote ⁵⁶

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.Footnote ⁵⁷

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 aninterpretive 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 promoteand protect, among which is the full exercise of human rights.Footnote ⁵⁸ As an interpretative guideline,it provides clear orientation for its observance through the separation of powers and the properfunctioning of the democratic institutions of the States parties within the framework of the rule of law.Footnote ⁵⁹

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.Footnote ⁶⁰ 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.Footnote ⁶¹

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, 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.Footnote ⁶² 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.Footnote ⁶³

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.Footnote ⁶⁴

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.Footnote ⁶⁵

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.Footnote ⁶⁶

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.Footnote ⁶⁷

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.Footnote ⁶⁸

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 respecting the rule of law, which is derived from the American Convention itself, the Charter of the OAS, and the Inter-American Democratic Charter.

V 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.”Footnote ⁶⁹ It was therefore designed to protect the human rights of individuals regardless of their nationality, vis-à-vis their own State or any other.Footnote ⁷⁰ 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.Footnote ⁷¹

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.”Footnote ⁷²

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.Footnote ⁷³ 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 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.Footnote ⁷⁴ 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.Footnote ⁷⁵ 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.Footnote ⁷⁶

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 intent of perpetuation, is incompatible with the effective exercise of democracy.”Footnote ⁷⁷ 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.”Footnote ⁷⁸

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.”Footnote ⁷⁹ In this sense, this Court emphasizes that political groups and parties play an essential role in democratic development.Footnote ⁸⁰

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.Footnote ⁸¹ 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.”Footnote ⁸² Similarly, the Declaration of Viña del Mar stated that:

78. A democratic system means that the person with the most votes takes popularly-elected office.Footnote ⁸⁴ 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 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 othersand the collaborative relationships between the different branches government in the exerciseof 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,Footnote ⁸⁵ nor a specific modality of limitations on exercising political rights.Footnote ⁸⁶ States can establish their political systems and regulate political rights according to their historical, political, social and cultural needs, which may vary from one country to another and even within one country, at different historical moments.Footnote ⁸⁷ 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.Footnote ⁸⁸ 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.Footnote ⁸⁹

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.Footnote ⁹⁰ The president is therefore in charge of appointing and removing the ministers and those leading the main government agencies.Footnote ⁹¹ In fourteen OAS member States, the President is also the commander- in-chief of the armed forces.Footnote ⁹²

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 other branches of government function. In particular, Presidents often have the power to participate in the lawmaking processFootnote ⁹³ and can call special sessions of the legislative branch.Footnote ⁹⁴ 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.Footnote ⁹⁵ In three States Parties to the American Convention, the President can also appoint certain judges.Footnote ⁹⁶

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,Footnote ⁹⁷ Guatemala,Footnote ⁹⁸ Mexico,Footnote ⁹⁹ and Paraguay;Footnote ¹⁰⁰ it is limited to a single additional term in Ecuador,Footnote ¹⁰¹ the United States,Footnote ¹⁰² and the Dominican Republic;Footnote ¹⁰³ reelection is limited to one consecutive term in Argentina,Footnote ¹⁰⁴ and allowed only non- consecutively in Brazil,Footnote ¹⁰⁵ Chile,Footnote ¹⁰⁶ Costa Rica,Footnote ¹⁰⁷ El Salvador,Footnote ¹⁰⁸ Panama,Footnote ¹⁰⁹ Peru,Footnote ¹¹⁰ and Uruguay.Footnote ¹¹¹

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

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.

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,Footnote ¹⁵⁹ nor a specific modality of limitations on exercising political rights.Footnote 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.Footnote 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 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.Footnote 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.Footnote 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:

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."Footnote ¹⁶⁵ Likewise, the Constitutional Court of Ecuador has found that term-limiting presidential reelection "allows democratic rotation and promotes the right to participation of other members of society,”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.

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:

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 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 Declarationof 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.

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, and 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. 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