Ratified treaties;¹ International case law²

Freedom of the press/ Human dignity/ Right of reply/ Superiority of ratified international treaties over domestic laws/ Direct resolution of a dispute on the basis of international law

On the basis of the right of reply, which he felt could be invoked on the basis of Article 14, paragraph 1, of the American Convention on Human Rights ratified by Argentina, the claimant petitioned for protection because of a violation of basic civil freedoms and rights before the National Appeals Court against the host of a television programme, who had refused to read a letter during his programme that replied to the statement a journalist had made earlier, considered to be defamatory by the claimant.

The claimant’s request had been rejected in first instance on the basis that, among other things, the right of reply was not enforceable because the American Convention on Human Rights itself established it “in the conditions provided for by law”, which prevented its automatic implementation as long as its basic provisions were not regulated and that no procedure organized its exercise, which the Argentine Congress had not done at that time.

That rejection gave rise to the claimant’s request before the Supreme Court, which was not only to determine whether the right of reply was an effective recourse to remedy an inability to defend human dignity that certain persons can experience when confronting the media but also to examine whether the right of reply, established by the American Convention on Human Rights, was directly applicable in Argentine domestic law or whether complementary legislation was required.

At the time of that decision, the 1994 constitutional reform, which expressly recognized the pre-eminence of ratified international treaties over laws, had not yet been made. In addition, up until that decision, the case law of the Supreme Court of Argentina had followed a dualist approach and had decided in several decisions that application of ratified international treaties in domestic law remained subordinated to the transposition of their contents into law by Congress.

With this case, the Court introduced a basic change in case law by abandoning the dualist approach and by recognizing the hierarchical superiority of ratified treaties over domestic legislation and adopted a broad interpretation of the directly applicable character of the provisions of international treaties.

In order to recognize the superiority of ratified treaties over domestic laws, taking into account the absence of express constitutional provisions in that regard, the Court based its decision on Argentina’s ratification of the Vienna Convention on the Law of Treaties and declared:

“The Vienna Convention on the Law of Treaties, adopted by Law 19 865, ratified by the executive power on 5 December 1972 and in force since 27 January 1980, confers primacy over domestic law to international conventions. Thereafter, that hierarchical priority has been an integral part of the Argentine legal system. That Convention is an international treaty, constitutionally valid, which assigns priority to international treaties over domestic law within the framework of domestic law. There is here a recognition of the primacy of international law over domestic law.”

That Convention modified the situation of the Argentine legal system that was in force in decisions 257:99 and 271:7 (Laws 43-458 and 131-773), because the legal hypothesis according to which “there is no legal basis for granting priority” to a treaty over the domestic legislation is no longer true. This legal basis is to be found in Article 27 of the Vienna Convention, in the light of which “A party may not invoke the provisions of its internal law as justification for its failure to implement a treaty.” In this respect, the Court declared “that the required application of Article 27 of the Vienna Convention imposes on the organs of the Argentine State an obligation to grant primacy to treaties in the case of any conflict with any contrary domestic provision or in the event of the omission of draft provisions, which, in their effect, are equivalent to a violation of the international treaty according to the terms of Article 27 mentioned above.”

That general principle having been raised, it was still necessary to determine whether Article 14(1) of the American Convention on Human Rights recognized a right directly enforceable before Argentine courts even if its contents had not been expanded by domestic legislation.

In order to determine its position, the Court referred to an advisory opinion of the Inter-American Court of Human Rights, which considered that Article 14, paragraph 1, of the Pact was directly applicable. The Inter-American Court, the body competent to interpret the American Convention on Human Rights, declared in one of its opinions that the Pact seeks to recognize the rights and freedoms of persons and not to authorize States to do that, stating thus that when the Pact establishes that the right of reply is applicable “in the conditions provided for by the law”, it refers only to strictly procedural questions (publication of the reply, time limit for exercising the right, etc.) specific to each national legal system.

Based on the above, the Supreme Court declared:

“When Argentina ratifies a treaty that it has concluded with another country, it assumes the obligation at the international level that its administrative and judiciary bodies apply it to the situations provided for by that treaty, as long as it contains descriptions sufficiently precise of those situations that make possible its immediate application. A provision is enforceable from the time that it is foreseen for a real situation in which it can act immediately, without there being a need for congress to create institutions.³ (…)

The textual interpretation of “every person has the right to” eliminates any doubt about the enforceable nature’ of this provision.”⁴

On the basis of the Vienna Convention and the case law of the Inter-American Court of Human Rights, the Argentine Supreme Court not only changed its position regarding earlier decisions that had denied the enforceable character of the right of reply in domestic law, but also radically changed its case law regarding the value of ratified treaties within the Argentine legal system. The Court accepted the claimant’s claims, revoked the Court of Appeal’s decision and required the defendant to read the letter written by the claimant during his television programme.

¹ American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969; Vienna Convention on the Law of Treaties, 1969.

² Inter-American Court of Human Rights.

³ Page 8 of that decision.

⁴ Page 9 of that decision.