Advisory Opinion Inter-American Court of Human Rights OC-5/1985 - Compulsory Professional Membership of Journalists Costa Rica

and offers an alternate judicial method of a consultative nature, designed to assist States and organs in complying with and applying treaties on human rights, without subjecting them to the formalism and system of sanctions that characterizes contentious proceedings. (Restrictions on the death penalty (arts. 4.2 and 4.4 American Convention on Human Rights), Advisory Opinion OC-3/83 of September 8, 1983. Series A No. 3, para. no. 43). However, the Court has also recognized that its advisory jurisdiction is permissive and that it would consider inadmissible any request for consultation that leads to undermining the Court's contentious jurisdiction, or, in general, to weakening or altering the system provided for by the Convention, in such a manner that the rights of victims of potential violations of human rights may be prejudiced. ("Other treaties" subject to the

advisory function of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, para. no. 31). 22. It does not escape the Court that a State against which proceedings have been instituted before the Commission could prefer that the complaint not be resolved by the Court in exercise of its contentious jurisdiction in order to thereby evade the effect of its judgments which are binding, final and enforceable according to articles 63, 67 and 68 of the Convention. In the face of a decision by the Commission concluding that there has been a violation of the Convention, the affected State could attempt recourse to an advisory opinion as a means to challenge the legality of those conclusions of the Commission without risking the consequences of a judgment. Given that the Court's advisory opinion would lack the effects of the latter, it could be considered that such a strategy would undermine "the rights of victims of potential violations of human rights" and that it would "undermine the Court's contentious jurisdiction". 23. Whether a request for an advisory opinion has or does not have these consequences will depend on the circumstances of the particular case ("Other treaties", supra 21, para. no. 31). In the present matter, it is clear that the Government won the Schmidt case before the Commission. Consequently, by requesting an advisory opinion on the law which, according to the Commission, does not violate the Convention, Costa Rica obtains no legal advantage. In truth, Costa Rica's initiative in requesting this advisory opinion after having won the case before the Commission enhances its moral position and there is, in such circumstances, no reason that justifies dismissing the request. 24. The Court considers, moreover, that the fact that Costa Rica did not submit the Schmidt case to it as contentious does not make the request for an advisory opinion inadmissible. Costa Rica was the first State Party to the Convention to accept the Court's contentious jurisdiction. Therefore, the Commission could have submitted the Schmidt case to the Court. Notwithstanding what was expressed by one of the Commission's delegates in the hearing of November 8, 1985, neither article 50 nor article 51 of the Convention requires that the Commission have concluded that there has been a violation of the Convention in order for a case to be referred to the Court. Consequently, it would be difficult to deny Costa Rica the right to request an advisory opinion solely because it did not exercise a power that corresponds to the Commission as an organ of the Convention responsible, inter alia, for ensuring institutional integrity and the functioning of the Convention's system. (Matter Viviana Gallardo and others. Resolution of November 13, 1981, paras. nos. 21 and 22). 25. Although the Convention does not specify under what circumstances the Commission should refer a case to the Court, it is apparent from the functions it assigns to both organs that, even though not legally obligated to do so, there are certain cases which, if they could not be amicably resolved before the Commission, should be submitted by it to the Court. The Schmidt case certainly falls within this category. It is a case that raises controversial legal problems not considered by the Court; its proceedings in Costa Rica's domestic jurisdiction were the subject of contradictory judicial decisions; the Commission itself could not reach a unanimous decision on those legal problems; and it is a matter of special importance in the continent, where several States have adopted laws similar to Costa Rica's.

26. Given that individuals are not empowered to bring an action before the Court and that a government that has won a matter before the Commission has no incentive to do so, the Commission's determination to submit such a case to the Court represents the only means for all the protection mechanisms that the Convention establishes to operate fully. Therefore, in such hypotheses, the Commission is called upon to specially consider the possibility of resorting to the Court. In a situation in which the Commission has not referred the case to the Court and, for that reason, the delicate balance of the protection system established by the Convention is affected, the Court cannot refrain from considering the matter if it is submitted to it by means of the advisory route. 27. Moreover, the question of whether the resolutions issued by the Commission in accordance with articles 50 or 51 can or cannot, in certain circumstances, bring the proceeding to an end, has no relevance in the matter submitted to the Court. 28. There being, consequently, no cause for inadmissibility of the request for an advisory opinion introduced by the Government, the Court declares it admissible. III THE FREEDOM OF THOUGHT AND EXPRESSION 29. Article 13 of the Convention provides as follows:

Freedom of Thought and Expression 1. Every person has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 2. The exercise of the right provided for in the preceding paragraph shall not be subject to prior censorship, but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a) respect for the rights or reputation of others, or b) the protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or privately controlled grants of radio and television broadcasting frequencies, or of newsprint paper allocations, or by any other means tending to impede the communication and circulation of ideas and opinions.

4. Public entertainments may, by law, be subject to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2. 5. Any propaganda in favor of war and any advocacy of national, racial, or religious hatred that constitutes an incitement to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be prohibited by law. Article 29 establishes the following rules for the interpretation of the Convention:

Rules of Interpretation No provision of this Convention may be interpreted as:

• a)

  permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

• b)

  restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said States is party;

• c)

  precluding other rights or guarantees that are inherent in the human being or derived from the democratic form of representative government, and d) excluding or limiting the effect of the American Declaration of the Rights and Duties of Man and other international acts of the same nature. 30. Article 13 provides that freedom of thought and expression "includes freedom to seek, receive and impart information and ideas of all kinds..." These terms literally establish that those under the protection of the Convention have not only the right and freedom to express their own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds. Therefore, when the freedom of expression of an individual is illegally restricted, not only is that individual's right being violated, but also the right of all others to "receive" information and ideas, from which it follows that the right protected by article 13 has a special scope and character. Thus the two dimensions of freedom of expression become apparent. Indeed, this freedom requires, on one hand, that no one be arbitrarily prevented or impeded from expressing his own thought, and thus represents a right of each individual; but it implies, on the other hand, a collective right to receive any information and to know the expression of the thought of others.

  31. In its individual dimension, freedom of expression is not exhausted in the theoretical recognition of the right to speak or write, but rather includes, inseparably, the right to use any appropriate medium to disseminate thought and bring it to the largest audience. When the Convention proclaims that freedom of thought and expression includes the right to disseminate information and ideas "by any... medium," it is emphasizing that the expression and dissemination of thought and information are indivisible, so that any restriction on the possibilities of dissemination represents directly, and to the same degree, a limit on the right to express oneself freely. Hence the importance of the legal regime applicable to the press and the status of those engaged professionally in it. 32. In its social dimension freedom of expression is a medium for the exchange of ideas and information and for mass communication among human beings. Thus, in addition to comprising the right of each to try to communicate to others his own points of view, it includes also the right of all to learn of the opinions and information of others. For the ordinary citizen it is just as important to know the opinion of others and to be informed of the information available to others as it is to disseminate his own. 33. The two aforementioned dimensions (supra 30) of freedom of expression must be guaranteed simultaneously. It would not be permissible to invoke the right of society to be reliably informed as a basis for establishing a prior censorship regime supposedly designed to eliminate information that would be false in the censor's view. Nor would it be admissible that, on the basis of the right to disseminate information and ideas, public or private monopolies be established over the media of communication with the aim of trying to mold public opinion according to a single point of view. 34. Thus, while in principle freedom of expression requires that the media of communication be open to all without discrimination, or more precisely, that there be no individuals or groups who are, a priori, excluded from access to such media, it requires equally certain conditions on those media themselves, so that they will be truly instruments of that freedom and not vehicles for restricting it. It is the media of social communication that serve to materialize the exercise of freedom of expression, so that their conditions of operation must be suited to the requirements of that freedom. For this reason, among other things, it is indispensable that there be a plurality of media, the prohibition of all monopoly regarding them, regardless of the form it may take, and the guarantee of protection for the freedom and independence of journalists. 35. The foregoing does not mean that any restriction on the media of communication or, in general, on freedom of expression, is necessarily contrary to the Convention, whose article 13.2 provides:

2. The exercise of the right provided for in the preceding paragraph shall not be subject to prior censorship, but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a) respect for the rights or reputation of others, or

b) the protection of national security, public order, or public health or morals. In effect, the definition by law of those conducts that constitute grounds for liability according to the cited article involves a restriction on freedom of expression. It is in the sense of conduct defined by law as generating liability for abuse of freedom of expression that the expression "restriction" shall henceforth be used with respect to this article. 36. Thus, as the Convention recognizes, freedom of thought and expression admits certain proper restrictions, which will be legitimate to the extent that they fall within the requirements of article 13.2. Therefore, since the expression and dissemination of thought are indivisible, it must be emphasized that restrictions on the media of dissemination are also restrictions on freedom of expression, so that in each case it is necessary to consider whether or not the terms of article 13.2 have been observed in order to determine their legitimacy and establish, accordingly, whether or not there has been a violation of the Convention. 37. The cited provision points out the conditions within which restrictions on freedom of expression are compatible with the Convention. Such restrictions must be established in accordance with certain requirements of form relating to the means through which they are manifested and substantive conditions, represented by the legitimacy of the objectives that such restrictions are intended to achieve. 38. Article 13.2 of the Convention defines through what means legitimate restrictions on freedom of expression can be established. It stipulates, in the first place, the prohibition of prior censorship, which is always incompatible with the full exercise of the rights enumerated by article 13, except for the exceptions contemplated in paragraph 4 concerning public entertainments, even if it is supposedly to prevent through such means a possible abuse of freedom of expression. In this area any preventive measure means inevitably the curtailment of the freedom guaranteed by the Convention. 39. Abuse of freedom of expression cannot be the object of preventive control measures but rather the basis for responsibility of those who have committed it. Even in this case, in order for such responsibility to be validly established according to the Convention, it is necessary that several requirements be met, namely:

• a)

  The existence of grounds for responsibility previously established,

• b)

  The express and exhaustive definition of such grounds by law,

• c)

  The legitimacy of the objectives pursued in establishing them, and d) That such grounds for responsibility be "necessary to ensure" the aforementioned objectives. All these requirements must be met in order to achieve full compliance with

2. 40. This norm provides that it is the law that must establish the restrictions on freedom of information and solely for the purpose of achieving the objectives that the Convention itself

points out. Because these are restrictions in the sense in which it was established (supra 35), the legal definition must necessarily be express and exhaustive. 41. Before entering into the study of paragraphs a) and b) of article 13.2 of the Convention, in light of what is relevant in the present consultation, the Court will analyze the meaning of the expression "necessary to ensure," employed in the same article. For this it must consider the object and purpose of the treaty bearing in mind the criteria for interpretation resulting from articles 29 c) and d) and 32.2, according to which

Rules of Interpretation No provision of this Convention may be interpreted as: ... c) precluding other rights or guarantees that are inherent in the human being or derived from the democratic form of representative government, and d) excluding or limiting the effect of the American Declaration of the Rights and Duties of Man and other international acts of the same nature.

Relationship Between Duties and Rights ... 2. The rights of each person are limited by the rights of others, by the security of all and by the just requirements of the common good, in a democratic society. Also to be borne in mind is what is stated in the Preamble where the signatory States reaffirm "their determination 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."

guarantees and to prevent through such means a possible abuse of freedom of expression. In this area any preventive measure means inevitably the curtailment of the freedom guaranteed by the Convention. 39. Abuse of freedom of expression cannot be the object of preventive control measures but rather the basis for responsibility of those who have committed it. Even in this case, in order for such responsibility to be validly established according to the Convention, it is necessary that several requirements be met, namely: a) The existence of grounds for responsibility previously established, b) The express and exhaustive definition of such grounds by law, c) The legitimacy of the objectives pursued in establishing them, and d) That such grounds for responsibility be "necessary to ensure" the aforementioned objectives. All these requirements must be met in order to achieve full compliance with the aforementioned standard. It is worth noting that the interpretation of the Court regarding the meaning of "necessary" in the American Convention must take into account the jurisprudence of the European Court of Human Rights and the relevant provisions of the International Covenant on Civil and Political Rights, as these provide important guidance in interpreting similar language. 42. These provisions represent the context within which the restrictions permitted by article 13.2 must be interpreted. It is apparent from the reiterated mention of "democratic institutions," "representative democracy" and "democratic societies" that the judgment about whether a restriction on freedom of expression imposed by a State is "necessary to ensure" one of the objectives mentioned in paragraphs a) or b) of the same article, must be linked with the legitimate needs of democratic societies and institutions. 43. In relation to this point, the Court finds it useful to compare article 13 of the Convention with article 10 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "the European Convention") and with article 19 of the International Covenant on Civil and Political Rights (hereinafter "the Covenant"), which read: EUROPEAN CONVENTION - ARTICLE 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring that the licensing of broadcasting, television or cinema enterprises be subject to authorization by the State. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. COVENANT - Article 19 1. No one shall be subjected to harassment for his opinions. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

• a)

  For respect of the rights or reputations of others;

• b)

  For the protection of national security or of public order, or of public health or morals. 44. It is true that the European Convention uses the expression "necessary in a democratic society," while article 13 of the American Convention omits those specific terms. However, this difference in terminology loses significance since the European Convention contains no provision comparable to article 29 of the American Convention, which establishes rules for interpreting its provisions and prohibits any interpretation that could "exclude other rights and guarantees... that are derived from the democratic form of representative government." It must also be emphasized that article 29 d) of the American Convention prohibits any interpretation that leads to "excluding or limiting the effect of the American Declaration of the Rights and Duties of Man...," recognized as part of the normative system by the Member States of the OAS in article 1.2 of the Statute of the Commission. Article XXVIII of the American Declaration of the Rights and Duties of Man for its part states as follows:

  The rights of each man are limited by the rights of the others, the security of all and the just demands of the general welfare and the development of democracy. The just demands of democracy must consequently guide the interpretation of the Convention and, in particular, those provisions which are critically related to the preservation and functioning of democratic institutions. 45. The way article 13 of the American Convention is drafted differs very significantly from article 10 of the European Convention, which is formulated in very general terms. In the latter, without a specific mention of what is "necessary in a democratic society," it would have been very difficult to delineate the long list of authorized restrictions. In reality, article 13 of the American Convention, which was modeled in part on article 19 of the Covenant, contains a shorter list of restrictions than the European Convention and the Covenant itself, only because the latter does not expressly prohibit prior censorship. 46. It is important to note that the European Court of Human Rights, in interpreting article 10 of the European Convention, concluded that "necessary," without being a synonym for "indispensable," implies the "existence of a pressing social need" and that in order for a restriction to be "necessary" it is not sufficient to demonstrate that it is "useful," "reasonable" or "opportune." (Eur. Court H.R., The Sunday Times case, judgment of 26 April 1979, Series A no. 30, para. no. 59, pages 35-36). This conclusion, which is equally applicable to the American Convention, suggests that the "necessity" and, therefore, the legality of restrictions on freedom of expression founded on article 13.2, will depend on their being directed to satisfy an imperative public interest. Among several options for achieving that objective, the one that least restricts the protected right must be chosen. Given this standard, it is not sufficient to demonstrate, for example, that the law fulfills a useful or timely purpose; in order for restrictions to be compatible with the Convention, they must be justified according to collective objectives which, by their importance, clearly outweigh the social need for the full exercise of the right that

guarantees and do not limit more than strictly necessary the right proclaimed in article 13. That is, the restriction must be proportionate to the interest that justifies it and be closely tailored to achieving that legitimate objective. (The Sunday Times case, supra, para. no. 62, page 38; see also Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, para. no. 59, page 26). 47. Article 13.2 also must be interpreted in accordance with the provisions of article 13.3, which is the most explicit in prohibiting restrictions on freedom of expression through "indirect means or procedures... aimed at preventing the communication and circulation of ideas and opinions." Neither the European Convention nor the Covenant contain a comparable provision. It is also significant that the norm of article 13.3 is located immediately after a provision --

2 -- that refers to permissible restrictions on the exercise of freedom of expression. That circumstance suggests the desire to ensure that the terms of

2 would not be misinterpreted as limiting, beyond what is strictly necessary, the full scope of freedom of expression. 48. Article 13.3 not only addresses indirect governmental restrictions, but also expressly prohibits "controls... by private parties" that produce the

same result. This provision must be read together with article 1.1 of the Convention, where the States Parties "undertake to respect the rights and freedoms recognized (in the Convention)... and to ensure their free and full exercise to every person subject to their jurisdiction..." Therefore, violation of the Convention in this area can result not only from the State itself imposing restrictions aimed at indirectly preventing "the communication and circulation of ideas and opinions," but also from failure to ensure that such violation does not result from the "controls... by private parties" mentioned in paragraph 3 of

Integrate the College of Journalists of Costa Rica:

• a)

  Those who hold degrees and bachelor's degrees in Journalism, graduated from the University of Costa Rica or from equivalent universities or institutions abroad, incorporated into it in accordance with applicable laws and treaties;

• b)

  In the event that the College verifies that there are no interested professional journalists who are members to fill a particular vacant position, the College may authorize, at the request of the journalistic enterprise, to fill it temporarily but under equal conditions, while a member becomes interested in the position, a student from the School of Journalism who has at least the first year completed and is enrolled in the second year. While a journalism student is authorized to occupy a journalist position, they are obligated to comply with the professional, ethical and moral duties that the law establishes for members, as well as to continue their studies at the School of Journalism.

The proper functions of the journalist may only be carried out by members registered with the College.

For the purposes of this law, a professional journalist in practice shall be understood as one whose principal, regular or remunerated occupation is the exercise of their profession in a daily or periodic publication, or in a radio or television news medium, or in a news agency, and who obtains from such activity the principal resources for their subsistence.

Columnists and commentators, permanent or occasional, of all types of media of communication, paid or unpaid, may freely exercise their function without the obligation of being members of the College, but their field of action shall be limited to that sphere, without being able to cover the field of the reporter, specialized or not.

of the American Convention on Human Rights. Second By unanimity that Law No. 4420 of September 22, 1969, Organic Law of the College of Journalists of Costa Rica, object of the present consultation, insofar as it prevents certain persons from belonging to the College of Journalists and, consequently, the full use of social communication media as a vehicle to express themselves and transmit information, is incompatible with article 13 of the American Convention on Human Rights. Drafted in Spanish and English, the Spanish text being authentic, at the seat of the Court in San José, Costa Rica, on November 13, 1985. Thomas Buergenthal President Rafael Nieto Navia Huntley Eugene Munroe Máximo Cisneros Rodolfo E. Piza E Pedro Nikken Charles Moyer Secretary

SEPARATE OPINION OF JUDGE RAFAEL NIETO NAVIA 1. The consultation request formulated by Costa Rica for this Opinion mentioned only articles 13 and 29 of the Convention. But the Illustrious Government of that country stated, through the Minister of Foreign Affairs, at the hearing of September 5, 1985, that "the problem here is not a problem of freedom of expression: it is a problem of the right of association and it is a problem of regulation of work". 2. The freedom of work is not directly regulated in the Convention. But it is, in article 16, the freedom of association, in light of which the phenomenon of the College of Journalists of Costa Rica must be analyzed, which, created and not merely permitted or tolerated by law, is a corporation of public law that exercises, by delegation of the State, normative, disciplinary and ethical powers over its members and monopolizes the exercise of professional activity, so that no one can practice it if they do not belong to the College (art. 22 of Law No. 4420). 3. Article 16 of the Convention states:

Freedom of Association 1. All persons have the right to freely associate for ideological, religious, political, economic, labor, social, cultural, sports or any other purposes. 2. The exercise of such right may only be subject to restrictions provided by law that are necessary in a democratic society, in the interest of national security, public security or public order, or to protect public health or morals or the rights and freedoms of others. 3. The provisions of this article do not prevent the imposition of legal restrictions, and even the deprivation of the right of association, on members of the armed forces and the police." 4. The content of article 16.1 touches, at the same time, both a right and a freedom, that is, the right to form associations, which cannot be restricted except in the events and for the purposes contemplated in articles 16.2 and 16.3 and a freedom, in the sense that no one can be compelled or obliged to associate. It must be understood that both extremes are protected by the Convention, although this does not expressly mention the negative freedom—the right not to associate which disappeared from the original draft of the Convention without the arguments for doing so being known (Inter-American Specialized Conference on Human Rights, San José, Costa Rica, November 7-22, 1969, Acts and Documents, OEA/Ser.K/XVI/1.2, Washington, D.C., 1978, p. 283) but which is expressly contemplated in article 20 in fine of the Universal Declaration of Human Rights according to which "no one may be obliged to belong to an association". Within the theory expounded by this Court, human rights must be interpreted in the manner most favorable to persons (Matter of Viviana Gallardo and others. Resolution of November 13, 1981, para. 16) and it is counterevident and aberrant to interpret the word

freedom as "right" only and not as "the natural faculty that man has to act in one way or another, or not to act" (Royal Spanish Academy, Dictionary of the Spanish Language, Twentieth Edition) according to his will. 5. The tendency to associate which, as Aristotle said in Politics (Book I, ch. I, para. 11), derives from nature, only becomes a "right" during the nineteenth century and this constitutes, together with suffrage, one of the pillars upon which the contemporary democratic State is built. 6. Freedom of association is the right of the individual to unite with others in a voluntary and lasting manner for the common realization of a lawful purpose. Associations are characterized by their permanence and stability, the ideal or spiritual character—as opposed to the physical or material—of the union, by the more or less complex structure that develops over time and by the tendency to expand and embrace the greatest number of members interested in the same purposes. As for the latter, the individuals voluntarily associated cannot carry out activities that correspond to or are reserved to public power, nor that use means not permitted to achieve their purposes, nor to carry out activities that are prohibited to human beings individually considered. 7. The question arises whether public entities with associative structure, called associations, corporations or colleges, violate the voluntary character—the voluntariness of action—contained in freedom of association. The answer must be that the imperative norm of public law that obliges individuals to associate in colleges by profession is valid and cannot be considered per se violatory of freedom of association, when such colleges fulfill strictly public purposes, transcendent to private interest, that is, when they receive from the State a delegation that the latter could fulfill directly but delegates because it considers that this is the most suitable way to achieve the proposed purpose. Such colleges cannot be considered to be those associations to which article 16 of the Convention refers. 8. On the other hand, it may be considered that freedom of association is violated by obligating by law individuals to do so, if the proposed purposes of such association are those that could be fulfilled by associations created by individuals under their freedom of association, that is, if such associations correspond to those to which article 16 refers. 9. The question that must be formulated is whether the public corporation called the College of Journalists of Costa Rica is an association to which article 16 of the Convention refers or, simply, an entity that acts by delegation of the State in functions that belong to it. The answer must be given after studying the purposes that such corporation proposes and that are contemplated in the first article of Law No. 4420:

The College of Journalists of Costa Rica is created, with seat in the city of San José, as a corporation made up of professionals in journalism, authorized to practice their profession within the country. It shall have the following purposes:

• a)

  To support and promote the sciences of collective communication;

• b)

  To defend the interests of its members, individually and collectively;

• c)

  To support, promote and encourage culture and all activities tending toward the advancement of the people of Costa Rica;

• d)

  To arrange or agree, when possible, medical-social assistance systems pertinent to protect its members when they are in difficult situations due to illness, old age or death of close relatives; or when their relatives, due to any of these eventualities, are faced with difficulties, understanding by relatives, for purposes of this law, spouse, children and parents;

• e)

  To cooperate with all public cultural institutions, whenever possible, when they request it or the law requires it;

• f)

  To maintain and encourage the spirit of unity of professional journalists;

• g)

  To contribute to perfecting the republican and democratic system, defend national sovereignty and the institutions of the nation; and h) To pronounce on public problems, when it considers it appropriate. It is clear that the purposes mentioned in subsections a), c), e), g) and h) can be fulfilled by entities of diverse types, not necessarily associative or public. Those contemplated in b), d) and f) deal directly with the interest or welfare of the "members" or "members" and could be fulfilled satisfactorily by private associations of the type of workers' unions. They are, therefore, purposes that are not strictly public nor transcendent to private interest and, read without prejudice, it is clear that they are not "necessary in a democratic society, in the interest of national security, public security or public order, or to protect public health or morals or the rights and freedoms of others" (art. 16.2) (the reasoning of the Opinion on these concepts is fully applicable here as well) and deal, instead, with the interest of the profession of journalists. In this sense it is clear that the College is an association to which article 16 of the Convention refers, that is, its purposes can be fulfilled by associations created under the protection of freedom of association, without the need for a law that does not limit itself to tolerate or permit their existence but creates the corporation, regulates it in its organization and administration and makes it mandatory, for whoever wishes to practice journalism, to belong to it, which means it creates restrictions on freedom of association. 10. The fact that article four of Law No. 4420 stipulates that "every journalist has the right to withdraw from the College, temporarily or permanently" cannot be interpreted except in consonance with article 22 which states that "the functions proper to journalism can only be carried out by members enrolled in the College". Because that means that whoever withdraws from the College cannot perform

  the functions of their profession (Decree No. 14931-C, Regulation of Law No. 4420, art. 10). 11. Law No. 4420, consequently, did not limit itself to protecting the right of association but made it mandatory, thereby violating the respective freedom. Whoever engages in journalistic activity without belonging to the College practices illegally a profession and is subject to the respective criminal penalties (Inter-American Commission on Human Rights, Resolution No. 17/84 Case-9178 (Costa Rica) OEA/Ser.L/V/II.63, doc.15, October 2, 1984). On the other hand, whoever does belong has legally a privilege that is denied to others, as the Court's Opinion has expressed very well. 12. To reason in the same manner as the Court does in its Opinion but with respect to freedom of association, it must be concluded that Law No. 4420 insofar as it makes it mandatory for journalists to belong to the College of Journalists of Costa Rica in order to practice their profession, a public corporation whose purposes could be performed by associations created under the protection of freedom of association, creates restrictions not permitted by article 16 of the Convention and, consequently, is incompatible with it. RAFAEL NIETO NAVIA CHARLES MOYER Secretary

  DECLARATION OF JUDGE MÁXIMO CISNEROS 1. I have subscribed to this Consultive Opinion because I share the reasoning extensively and meticulously expounded therein, which lead to the conclusions reached constituting a faithful and inescapable interpretation of the American Convention on Human Rights, to which I must adjust myself in my capacity as Judge. 2. But as a man of law I cannot avoid a deep concern about the scope that may be given to it, according to the interpretation criteria that may be employed and, although naturally I respect each and every one of them, I believe it convenient to record my own criterion, since for me it has been decisive in voting for this Opinion the consideration that the adopted text is reconciled with my personal interpretation. 3. In my view, what is expressed in point "First" of this Consultive Opinion does not mean the adoption of a generic concept that mandatory collegiate registration of journalists must necessarily disappear as an indispensable condition for freedom of expression to exist. 4. I personally believe that Colleges of Journalists, in general, are useful to the social interest because within their purposes and activities they pursue objectives of evident common good. Among such objectives can be cited for example the important work they usually perform to achieve constant improvement in the training of their members, which enables them for the adequate use of technological advances, in rapid evolution in our times, which is characteristic of the sciences of communication and, above all, in the indispensable vigilance of professional ethics. 5. If there is a profession that requires a Code of Professional Ethics and careful and effective application thereof, it is undoubtedly that of journalist, with a preeminence over any other profession, because given that their activity is exercised through social diffusion media, that is, with the enormous power that this means as a determining factor in the formation of public opinion, the excesses that may be committed in its exercise affect in a very serious way the other members of society, in values as important as the honor and dignity of persons. I also believe that the way to exercise vigilance of professional ethics most congruent with the principles of a democratic society is precisely through Colleges, because in this way it means in some form a self-limitation of the personal rights of journalists for the sake of the common good. 6. For all this I must emphasize that, in my view, the Opinion in the terms adopted in its point "First" leaves open the path for the provisions that regulate the Collegiate registration of journalists to be modified in a way that eliminates the incompatibilities that have been noted, thus remedying the legal difficulty. I believe that thus, however substantial the modification may be and however difficult the adjustment may seem, if it is achieved, the best service will have been done to the principle of freedom of expression, the cause of Human Rights, and the stability of the democratic institutions of which, at least in the majority of Latin American countries, Colleges of Journalists form a part.

  7. For this same reason, in my view, what is expressed in point "Second" of this Consultive Opinion, neither does it necessarily mean the need for repeal of Law No. 4420, but rather what is desirable is, equally, its modification and adjustment so that the incompatibility indicated therein disappears. 8. The College of Journalists of Costa Rica, governed by the Law referred to in the preceding paragraph, has a Code of Professional Ethics, approved democratically by the majority of its members, which has been presented in this proceeding during one of the hearings. This Code has a Chapter II called "Duties of Journalists to Society" from which I believe it useful to cite some of its norms:

The journalist must be aware of the need for their active participation in social transformation to promote respect for freedom and human dignity. Must strive for equality of all men without distinction of race, sex, language, religion, opinion, origin, position and status. All men have equal and indisputable right for society and therefore social communication media to respect human dignity and strive for it to transcend from theory to practice. The journalist shall strive to ensure these principles are applied.

It is the duty of whoever practices the profession of journalist to report facts with meticulous accuracy, in a complete, concise, clear manner and with absolute respect for the truth, thinking at all times that the news must be written in a way that promotes the common good.

The journalist must exercise discretion regarding the source of confidential information obtained, but never invoke professional secrecy to defend or shield interests foreign to those of the State, democratic institutions and true values of the common good.

Freedom of the press must be protected by the journalist as an essential right of humanity and everything that places obstacles to it must be denounced immediately in a clear and final manner. (Emphasis added). 9. The consideration that principles of this nature can be duly qualified as a contribution to "the just demands of the common good in a democratic society" reinforces my view that it will be worth all efforts made, however difficult it may seem, for Law No. 4420 to be adjusted to the Convention, and so that unrestricted freedom of expression can be enjoyed in Costa Rica, within the especially elevated level in which the Convention expresses it, together with the contributions that the College of Journalists can continue to provide to its democratic system, a system which is also a substantial and essential principle for the full force of the American Convention on Human Rights. 10. Finally I want to end this declaration by emphasizing the importance and significance of what is stated in paragraphs 24, 25 and 26 of this Consultive Opinion, because they reveal the very serious and deplorable deficiency that the Inter-American System on Human Rights has been showing. More

than six years ago, on September 4, 1979, in my capacity as one of the founding judges of the Inter-American Court of Human Rights, and on the occasion of the ceremonies for the installation thereof, in a speech I delivered before the Supreme Court of Justice of Costa Rica, I said: I want to say in this hall of justice that the men who make up this Inter-American Court are willing to carry out our work with love, with awareness of what it represents for the hopes of men of law in America, to make real the dream of justice of our peoples. Now, as I affix my signature to this Consultive Opinion I am performing my last act as Judge of the Inter-American Court of Human Rights, I want to say that the "love" we have put into our work has not been enough to avoid the feeling of frustration I feel upon retiring without the Court having heard a single case of violation of Human Rights, despite the painful reality of our America in that field. As consolation I can only have the hope that by pointing out in this Opinion the deficiency: Given that individuals are not empowered to bring an action before the Court and that a government that has won a case before the Commission has no incentive to do so, the Commission's determination to submit such a case to the Court represents the only way for all the means of protection that the Convention establishes to operate fully. For this reason, in such cases, the Commission is called upon to consider especially the possibility of resorting to the Court (para. 26). Let this serve so that the men committed to this important cause of human rights join efforts to make our system truly operative through the adequate participation of all the organs that compose it. MÁXIMO CISNEROS CHARLES MOYER Secretary

SEPARATE OPINION OF JUDGE RODOLFO E. PIZA ESCALANTE 1. I have concurred fully with the Court's pronouncement contained in this Consultive Opinion. However, I formulate this separate opinion because I consider I should extend to some other aspects involved in the consultation, applicable both to the mandatory collegiate registration of journalists, in general, as well as with respect to Law No. 4420, Organic Law of the College of Journalists of Costa Rica. 2. First, I take up the Court's opinion that the content of the activity of journalists coincides totally with the exercise of freedom of expression, as it is enshrined by article 13 of the American Convention, so that every restriction on such activity is a restriction on such freedom (see for example Nos. 72, 74, 75 and 77 of the Principal Opinion); as well as that the only permissible restrictions on that freedom are those provided taxatively by paragraph 2 of the same article, it being unlawful to admit others derived from an extensive interpretation of that text (see Nos. 39, 46 and 52), nor from the application of other norms, such as the general provision of article 32 of the Convention itself (see No. 65), or, still less, those of other international instruments (see Nos. 51 and 52), which have, of course, a very high interpretive value, but in relation to which it is obvious that the American Convention wished to go much further in the definition and protection of such freedom, clearly departing in this point from its European and universal models, article 10 of the European Convention and article 19 of the International Covenant on Civil and Political Rights (see Nos. 43, 45 and 50). 3. In this sense, it seems to me that much of the Costa Rican Government's substantive position may be due to the fact that the Costa Rican tradition enshrines that freedom only as the right to freely express one's own thoughts. As articles 28 and 29 of its Constitution state:

(manifestation of opinions) No one can be disturbed or persecuted for the manifestation of their opinions nor for any act that does not infringe the law.

(freedom of press) All can communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner the law establishes. 4. The Convention, on the other hand, as is noted in the Principal Opinion (see No. 30), defines it in the broadest way possible as the right to "seek, receive and disseminate information and ideas of all kinds, without regard to borders, whether orally, in writing or in printed or artistic form, or by any other procedure of their choice" (art. 13.1), which obviously implies the freedom to disseminate, not only one's own thought, opinion, imagination or inspiration, but also those of others, as well as simple facts of which one has knowledge, in a manner totally consistent with the content of the activity exercised by journalists, in general, and also in accordance with the definition itself resulting from Law No. 4420 (arts. 22ss.) and, especially, from its Regulation (arts. 29 and 30). 5. The Court has expressly used the word restrictions, not in the strict sense of preventive limitations on the exercise itself of freedom of expression, which article 13.2 of the Convention does not permit in any case, but in the general sense of conduct pre-established taxatively by law as generating subsequent responsibilities, derived from the exercise of that freedom, the only ones that such provision authorizes, within the formal and material conditions that it authorizes (see No. 35 in fine of the Principal Opinion). From this point of view, my opinion is fully consistent with that of my colleagues. 6. However, I consider that mandatory collegiate registration of journalists should be analyzed, not only in relation to those restrictions lato sensu, as generating subsequent responsibilities, but also insofar as it may imply, at the same time, a true restriction stricto sensu as a preventive condition for the exercise itself of freedom of expression, prohibited in all cases by the Convention. This results both from the text of article 13, as from its context, in accordance with its object and purpose, which are mandatory criteria of interpretation in accordance with article 31 of the Vienna Convention on the Law of Treaties (the Court has said this repeatedly: see OC-1/82, "Other treaties"..., No. 33; OC-2/82, The effect of Reservations..., No. 19; OC-3/83, Restrictions on the Death Penalty..., Nos. 48 and 49; OC-4/84, Naturalization (Costa Rica)..., Nos. 21 and 22), as well as from the nature of that freedom as an essential institution of the democratic system and a condition for the enjoyment of other fundamental human rights and freedoms (see Nos. 42, 44 and 70). All of which points to the need to interpret extensively the norms that enshrine it, and restrictively those that permit its limitation, from which must be understood to be prohibited by article 13.2 all restrictions that are not expressly and taxatively authorized by it, that is, only those "subsequent responsibilities... expressly fixed by law... necessary to ensure: a. respect for the rights or reputation of others, or b. the protection of national security, public order or public health or morals" (see Nos. 39, 40 and 52 of the Principal Opinion). 7. At this point, it must be taken into account the fact that paragraphs 1 and 2 of article 13 of the Convention are almost textually copied from paragraphs 2 and 3 of

of the International Covenant on Civil and Political Rights of the United Nations, which establishes:

2. Everyone has the right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, without regard to frontiers, either orally, in writing or in print or in the form of art, or through any other media of their choice. 3. The exercise of the right provided for in the foregoing paragraph carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, which shall, however, be expressly provided by law and be necessary for:

• a)

  Respect for the rights or reputations of others;

• b)

  The protection of national security, public order, public health or public morals. 8. As can be seen, article 19.3 of the International Covenant corresponds almost exactly to article 13.2 of the American Convention, except that the latter added the prohibition of all prior censorship and that it substituted, expressly, the possibility of "certain restrictions" of the former, for that of "subsequent responsibilities", substitution which cannot be considered accidental or semantic but intentional and substantive. 9. The Court highlighted these differences (see Nos. 43, 45 and 50 of the Principal Opinion), as well as insisted on the need to distinguish between restrictions authorized by article 13.2, which can only be established in the form of subsequent responsibilities, and those not authorized, which cannot imply either measures leading to prior censorship, nor, much less, suppression of freedom of expression, nor either those that impose preventive conditions for its exercise (see for example Nos. 38, 39, 53, 54, 55 and 82). It also highlighted the qualifying effect that article 13.3 must have with respect to such restrictions, insofar as it prohibits "restricting the right of expression through indirect means or methods... aimed at preventing the communication and circulation of ideas and opinions" (see Nos. 47 and 48). Likewise, it established that mandatory collegiate registration of journalists is incompatible with the Convention, insofar as it bars access to such registration and the exercise of that profession to those who cannot register (see Nos. 77 and 82), and at least warned of the care with which one must regard the fact that the State exercises or delegates to the college disciplinary powers capable of restricting such exercise beyond the limits taxatively authorized by such provision (see No. 81). 10. However, my opinion is that one must go more deeply into the difference that exists between subsequent responsibilities, which alludes to infractions of law that only occur with the exercise of freedom of expression and are only sanctioned after exercising it, and imposing restrictions proper, directed at limiting the exercise itself of freedom, such as licenses or authorizations. In effect, the definition itself of the latter characterizes them as forms of preventive protection, consisting in the lifting of an obstacle imposed by law on the exercise of one's own right, so that their specific normative sense is not that of subjecting that exercise to a subsequent responsibility for the abuse committed with it, but that of preventing the exercise itself while the license or authorization has not been granted. Certainly, it can occur that an activity requiring a license or authorization be carried out, in fact, without obtaining it, in which case it would seem to become a subsequent responsibility, but this would be in such case no more than a secondary consequence of the violation of such condition, so that the question would become a simple matter of effectiveness thereof, not of its normative sense, which is always that conduct not be carried out at all without the prior license or authorization and that what is necessary be done so that it is not carried out. This is quite different from the subsequent responsibilities authorized restrictively by article 13.2, which cannot tend in themselves to produce that preventive effect, but only to achieve, through indirect and non-preventive means (the sanction following the abuse), that the exercise of the right be kept within legitimate limits. 11. I consider that mandatory collegiate registration of journalists constitutes a restriction of that nature, whose specific normative sense is to prevent the exercise itself of journalistic activity, coincident, as has already been stated, with that of freedom of expression, by non-registered journalists, subjecting it to the condition of a license or authorization, and, therefore, to condition freedom itself to a restriction stricto sensu not authorized as such by article 13.2 of the Convention. In this way, I believe that mandatory collegiate registration of journalists is, in itself, incompatible with the Convention, regardless of the manner in which it is regulated and although it only constituted a formality accessible to any person who wished to practice journalism, without the need for any additional requirement. Freedom of expression is a fundamental right of every human being by the mere fact of being human, whose exercise cannot be restricted nor conditioned to the fulfillment of prior requirements of any nature which they cannot or do not wish to fulfill. 12. The same conclusion is reached if one recalls that article 13.3 prohibits any type of restriction on freedom of expression through "indirect means or methods... aimed at preventing the communication and circulation of ideas and opinions". In effect, if the Convention prohibits such indirect restrictions, it is not possible to understand that it permits direct ones. Moreover, the fact that that express prohibition only refers to the communication or circulation of ideas or opinions, cannot be interpreted as permitting restrictions on freedom of information, in the sense of the search and dissemination of news without ideological content, because this freedom also implies the communication and, above all, the circulation of ideas or opinions of others, alongside simple news, which would be the only ones not expressly included in the prohibition. In any case, these can and must be considered implicitly contemplated in it by virtue of the principle of extensive interpretation of human rights and restrictive interpretation of their limitations (principle pro homine), and the universal criterion of hermeneutics that "where there is the same reason there is the same provision". . . . 13. In another order of ideas, it seems to me that the essential linking of the exercise of journalism with that of freedom of expression gives rise to other incompatibilities with the Convention, if not necessarily from all mandatory collegiate registration of journalists, at least from the manner in which it is normally structured in countries that provide for it, as well as, with all certainty, in the Organic Law of the College of Journalists of Costa Rica. Of those incompatibilities merit, in my judgment, highlighting two of fundamental importance, namely: 14. The first results from the fact that, normally, mandatory collegiate registration means the creation of a public entity of a corporate character, with the specific objective of attributing to it, not only the supervision and discipline of the professional activity of its members, which would be feasibly legitimate within certain conditions, but also the power to establish itself ethics codes and other disciplinary norms that imply restrictions, responsibilities and sanctions ex novo, not provided taxatively by the law itself. In this sense, I consider that both article 13.2 of the Convention, in authorizing only "subsequent responsibilities... expressly fixed by law", and the general principle of criminal legality to which article 9 thereof refers, in the sense that "no one can be convicted of actions or omissions that at the moment of being committed were not criminal according to the applicable law", allude precisely to the principle of reservation of law. In reality, although those provisions do not specify the sense of the words law and right, the application of general principles universally shared in democratic nations and in all States governed by law permits affirming that these are matters strictly reserved to formal law, emanating from a democratic parliament with all the guarantees that this implies, because if there is something definitive in this matter it is that the regime of fundamental human rights and freedoms is a matter of reservation of law. 15. In any case, it is with respect to Costa Rican Law, in which the principle has constitutional rank and is, moreover, expressly enshrined in the General Law of Public Administration (art. 19: "the legal regime of constitutional rights shall be reserved to law..." ; art. 124: "regulations, circulars, instructions and other administrative dispositions of a general character may not establish penalties nor impose exactions, fees, fines nor other similar charges"), as well as by constitutional, administrative and criminal jurisprudence (which have declared applicable to disciplinary matters the guarantees of criminal legality), so that, at least with respect to Costa Rican Law No. 4420, such principle is applicable, not only in internal law, but also in international law, be it in the latter as a criterion of interpretation in accordance with the provisions of article 29 subsection b) of the Convention (which specifically alludes to "any right or freedom that may be recognized in accordance with the laws of any of the States Parties..."). 16. On the other hand, it is also a normal thing that organic laws of colleges of professional journalists, and a positive fact that Law No. 4420 of Costa Rica, impose on their members, directly or indirectly, restrictions on the exercise of their profession or sanctions that imply them, for the fulfillment of purely guild purposes or other of a social or private nature, which cannot justify their public character and, much less, be esteemed as necessary, in a democratic society, to ensure respect for the rights or reputation of others, nor the protection of national security, public order or public health or morals, as it results restrictively from article 13.2, in relation to the fundamental values of the system of the Convention. . . . 17. In consequence: I agree with the two conclusions of the Principal Opinion, but add the following as a Separate Opinion: Third: That, furthermore, the collegiate registration itself of journalists in general, and that established by Law No. 4420 in particular, are also incompatible with article 13 of the Convention, insofar as they impose a license or prior authorization for the exercise of that profession, which amounts to a preventive restriction, not authorized by article 13.2 of the Convention, on the exercise of freedom of expression. Fourth: That, independently of the incompatibilities noted in the preceding conclusions, mandatory collegiate registration of journalists normally, and Law No. 4420 in all cases, imply other violations of freedom of expression, at least in two fundamental aspects, namely:

  • a)

    that of granting the respective college powers to establish restrictions and sanctions that are not taxatively defined by law, in violation of the reservation thereof provided by article 13.2 of the Convention and the principle of criminal legality enshrined by article 9 thereof;

  • b)

    that of imposing restrictions derived from the obligation to register as a member of the college for the fulfillment of guild purposes and others that are not necessary to ensure respect for the rights or reputation of others, nor the protection of national security, public order or public health or morals in a democratic society, as it results restrictively from the same article 13.2, in relation to the fundamental values of the system of the Convention. 18. By virtue of what is expounded in my preceding conclusion No. 4 b., I also adhere to the Separate Opinion of Judge Nieto, with the caveat that the College of Journalists of Costa Rica does indeed exercise activities of a public character that are not mentioned in article 1 of its Organic Law. RODOLFO E. PIZA E. CHARLES MOYER Secretary

    DECLARATION OF JUDGE PEDRO NIKKEN 1. I have concurred in the Court's decision and share both the analysis and the conclusions of this Consultive Opinion, because I believe that it expresses the most faithful interpretation of the American Convention on Human Rights. I have deemed it appropriate, however, to formulate a declaration that specifies some aspects both of the foundations and the scope of the Court's interpretation, which are implicit, from my point of view, in that Opinion. . . . 2. In relation to the foundations I believe that the Court's conclusions cannot be divorced from the premise that originates them, such as the contrast between the text of articles 13 and 29 of the Convention, on the one hand, and a certain kind of collegiate registration of journalists, on the other. 3. The American Convention, as the Court has noted, defines freedom of expression in the broadest way possible, which comprises, according to article 13, the right of every person to seek and disseminate information by any procedure of their choice. Text so categorical cannot logically coexist with a legal regime that authorizes the search for information, and its dissemination through social communication media, only to a small group of persons, such as the members of a college of journalists and that, consequently, excludes from that sphere the majority of the population. 4. As the Court highlighted, the text of the Convention offers broader protection than that of other similar treaties, not so much because it recognizes more powers to the person but because it authorizes fewer restrictions on them. In fact, the Convention does not even use the latter expression, for it limits itself to noting that responsibility is incurred when, in exercise of freedom of expression, laws necessary to safeguard the rights or reputation of others, national security, public order or public health or morals have been offended. 5. In this respect I believe it is correct what was mentioned in the hearings in the sense that because this is broader than other treaties, what is legitimate according to the International Covenant on Civil and Political Rights or according to the European Convention on Human Rights, may be illegitimate in America, because it departs from the American Convention. It suffices to recall the particular regulation of the death penalty contained in article 4 or the right of rectification and reply of article 14 to find evidence of the mentioned circumstance. This fact is not surprising because the establishment of the international regime for the protection of human rights reveals that frequently the more modern treaties are broader than the preceding ones and that the fewer cultural and political differences exist between the States that negotiate them, the easier it is to conclude more advanced treaties. It is not surprising, therefore, that the American Convention, signed almost twenty years after the European one and covering only the American Republics, is more advanced than it and also than the Covenant, which aspires to be an instrument that binds every government on the planet. 6. On the other hand, mandatory collegiate registration of journalists, conceived in the terms in which it was presented to the Court, represents an extreme regime in that:

    A. The acts considered by law as proper to the exercise of journalism can only be carried out by registered members. In this manner, according to several of the collegiate registration laws existing on the continent, it would suffice for a person to "disseminate" by themselves, "through a procedure of their choice" -press, radio or television- information that they had "sought" freely, for them to incur responsibility—even criminal—for illegal practice of journalism. I believe that any interpretation of the Convention that considers that such a supposition is authorized by the treaty departs from what it literally provides. B. The College is only open to graduates of journalism schools, even if they do not practice the profession and furthermore, in some cases, to those who, lacking the academic degree, have demonstrated, in the judgment of the College, having practiced it for a certain number of years before the vigency of the collegiate registration law. In this way, the advantages obtained with membership in the College do not depend on the current exercise of journalism, and in some cases not even on whether it has ever been practiced. It does not seem rational that those who are not effectively journalists can belong to the College while the possibility of access to it is closed to other persons who could effectively carry out journalistic activity for the benefit of the community. Authorizing such access, on the other hand, would have a rational basis given that the laws themselves have admitted that there are journalists who lack the university degree that accredits them as such, and that they have the right to register in the College, but limit that recognition to those who were in such a situation before the law came into force. Why such limitation in an activity that profoundly touches a right inherent to every human being? 7. I believe that the Court's conclusions stem from that contrast between the vast protection provided by the Convention and the exaggerated exclusivism of collegiate registration; but I do not believe that the latter is, per se, contrary to the Convention, even in the case of journalists and even if collegiate registration is mandatory. What happens is that, if mandatory collegiate registration is to be established for a profession whose exercise involves that of a right of every person, access to the College cannot be restricted in the terms in which several of the existing laws on the continent do; nor do I believe that isolated acts by which what is really being exercised is freedom of expression should be judged as the exercise of journalism—a notion which bears a certain stability; In that sense, if journalism is to be subjected to the collegiate registration that is applied to other professions, this must be done by adapting the regime of the College, not to the characteristics of those other professions, but to those proper to the exercise of this craft, which includes that of freedom of expression. . . . 8. As for the scope of the Court's Opinion, I believe, in the first place, that what it itself states should be underscored to the effect that mandatory collegiate registration of journalists, while restricting, does not suppress freedom of expression so that in no way could such Opinion be interpreted as considering that in countries where mandatory collegiate registration exists, there is, for that sole reason, no freedom of expression. This observation is particularly valid with respect to Costa Rica, a country seat of the Court and an inevitable point of reference for the democratic institutions of Latin America, which raised this consultation as a further expression of its adherence to the rule of law and respect for the Convention.

    9. In the second place, I believe that neither can the Court's Opinion be interpreted as a taking of position on the relationship between journalism enterprises and those who work for them. As far as the strictly labor aspect is concerned, the Court has made no pronouncement and I believe that the activities of the guilds to obtain dignified and satisfactory working conditions cannot be considered otherwise than as necessary and plausible. 10. With respect to the more strictly journalistic part, that is, what pertains to the respect due to the journalist, even in the face of the editorial line of the communication medium for which they work, especially with respect to the veracity of the information they gather and that is published under their responsibility, I believe it is necessary to emphasize what the Court stated to the effect that "the freedom and independence of journalists is a good that must be protected and guaranteed". I believe that collegiate registration can play a role for that purpose, although I also believe that it is not the only means to obtain it. A statute of legal rank can be conceived that protects those who effectively practice journalism against eventual unworthy dispositions of their employers, without needing to resort to a collegiate registration regime that protects those enrolled in the College, even if they do not work as journalists, but that restricts such enrollments and unnecessarily limits the rights of the majority. Moreover, it has not been demonstrated that collegiate registration is the most effective of the means of protection for journalists, nor that in countries where it exists such alleged abuses by newspaper owners have been ended. 11. However, I do not believe that the plain and simple suppression of collegiate registration laws, in countries where they exist, will necessarily result in an improvement of the real possibilities for expression and information. A weak guild, lacking a statute that guarantees its independence, can be the appropriate context for "private controls" to establish the indirect means, prohibited by article 13.3, "aimed at preventing the communication and circulation of ideas and opinions". I do not believe it would be just or prudent to interpret the Court's Opinion as stating that collegiate registration limits freedom of expression and that it suffices to eliminate that collegiate registration to automatically reestablish such freedom, because that assertion is not true. The sole suppression of collegiate registration can lead to granting greater power of "private control" to a few press entrepreneurs, without special benefit for the community and without any assurance that access to diffusion media will be opened to every non-registered person. It can, rather, favor a lack of independence of journalists, even disregarding ethics, in favor of their employer, something that could also come to harm the values preserved by article 13.2. 12. Therefore I believe that the Court's Opinion has the advantage, in this case, of being characteristically a means to "help the States... to comply with and apply treaties on human rights matters, without subjecting them to the formalism that characterizes contentious proceedings". (Restrictions on the Death Penalty (arts. 4.2 and 4.4 of the American Convention on Human Rights) Consultive Opinion OC-3/83 of September 8, 1983. Series A, No. 3, para. 43.) In that perspective I believe it can play a role of great utility insofar as it could result in the starting point for States Parties where laws of mandatory collegiate registration exist to be able, insofar as necessary and in compliance with article 2 of the Convention, to adopt "legislative or other measures" to adjust the professional regulation of journalism in such a way that, while maintaining or strengthening provisions aimed at preserving the freedom and independence of journalists, the right of every person to seek,

    receive and disseminate information and ideas by any medium of their choice and that of society to receive information from any source is not restricted, unnecessarily and improperly. PEDRO NIKKEN CHARLES MOYER Secretary