SPEECH BY DEAN CLAUDIO GROSSMAN

PRESIDENT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

IN THE CONTEXT OF THE DIALOGUE ON THE IMPROVEMENT OF THE
INTER-AMERICAN HUMAN RIGHTS SYSTEM 

COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS

OF THE PERMANENT COUNCIL OF THE OAS

Washington, D.C., May 3, 2001

          Madame Chair of the Committee on Juridical and Political Affairs of the Permanent Council, distinguished representatives of member states of the Organization and observers, Executive Secretary of the IACHR, ladies and gentlemen:

          Madame Chair, I would like to thank you for the opportunity to be here once again before this Committee on Juridical and Political Affairs, this time to dialogue with you, ladies and gentlemen, representatives of the democratically elected governments of the Hemisphere, about improving the inter-American human rights system.  It is not my intention to reiterate my remarks during my presentation before this Committee last week.  Rather, I will discuss in more depth several points of particular importance for the current state of the dialogue on the inter-American system for the protection of human rights as well as the direction the system is and should be taking.  These reflections are based on the IACHR’s vast experience regarding the human rights needs of our region and the type of system that we must mold in order to respond to these exigencies.[1]

          1.    LEGITIMACY OF THE SYSTEM AND NECESSARY CAUTION

          Ladies and gentlemen:  We are living in promising times in a Hemisphere in which both men and women have seen, as never before, the essential possibility of developing as free human beings.  In this context, the inter-American system enjoys an enormous degree of legitimacy that extends beyond its organs and radiates throughout the regional organization.

          This reality has caused more and more men and women in our Hemisphere to approach the Inter-American Commission in search of responses to their demands for human rights protection and this has led the Commission to increase its individual caseload.

          For example, when I was President of the IACHR for the first time in 1996, we published 31 decisions in individual cases, including 16 on the merits, 1 friendly settlement, and 14 decisions on admissibility/inadmissibility.  As I already mentioned in the report I presented to you last week, we published 153 decisions, in other words five times more, including 35 decisions of admissibility, 23 on the merits, and 13 reports of friendly settlement, in addition to 21 decisions of inadmissibility and 61 to set aside.  These figures illustrate the legitimacy of the system both in terms of increased use and because states are part and, to a degree, architects of this legitimacy.  In the 1996 report, in five of the thirty-one cases the respective government never responded to the request for information nor participated in the proceedings before the Commission.[2]  In the 2000 report, governments participated in each and every one of the 153 reports we published.  But the legitimacy of the system is best demonstrated by contrasting the one friendly settlement published in 1996[3] to the 13 that were reached this past year.

          I do not wish to bore you with more figures, Madame Chair, to support my thesis that the system enjoys enormous legitimacy and must be jealously safeguarded.  And it is for this reason that this basic premise should be the point of departure for dialogue on the system.  It is also imperative to proceed with caution in order to preserve one of the OAS’ main sources of legitimacy.

          2.    THE NEED TO BUILD CONSENSUS AMONG ALL ACTORS IN THE SYSTEM

          Ladies and gentlemen, the IACHR believes that it is of utmost importance to maintain an open and public dialogue on improving the inter-American system.  In order to preserve the legitimacy of the system, every discussion, debate, or dialogue seeking to build consensus around strengthening the inter-American system must include each and every actor associated with the system.

          We particularly have in mind states, the organs of the system, and civil society organizations.  Each of these actors has a unique perspective, based on its particular roles, responsibilities, and experiences that will contribute to a comprehensive vision of the system.  Taking into account the system’s purpose and legitimacy and the democratic nature of member states, reform cannot be carried out any other way.

          Consensus-building requires time and dialogue.  It is therefore important not to adopt hasty measures that might jeopardize the achievements made up to now.  Nonetheless, all the actors in the system agree that two core issues can and must be considered during the next OAS General Assembly to be held in San Jose, Costa Rica, this June.  We are referring to a substantial increase in funding for the Commission and the Court and the creation of a mechanism by which the political organs of the OAS can appropriately carry out their role of supervising compliance with Commission and Court decisions.  As I will discuss later, several member states have made constructive, timely proposals pertaining to specific aspects of the required reforms that we hope will receive the necessary support in San Jose.  Moreover, there is a third core issue for strengthening the inter-American system and that is incorporating human rights obligations into national regimes.

3.    REGULATORY REFORMS AND CHALLENGES AHEAD

          As a contribution toward strengthening the system, in recent months the Commission[4] and the Court[5] have approved reforms to their Rules of Procedure in the framework of their respective autonomous structures.  It is our understanding that these reforms reflect the suggestions contained in resolution AG/RES. 1701 (XXX-O/00) adopted in Windsor.  The IACHR’s Rules of Procedure took effect on May 1 of this year and the Court’s will take effect on June 1.  These regulatory reforms represent one of the most significant developments in the inter-American system since the American Convention entered into force more than 30 years ago.  These reforms must not be overlooked and must be seriously taken into account in the dialogue process.

          The Commission and the Court streamlined and organized their procedures, increased victim participation, and adopted necessary provisions to avoid duplication of procedures before the Court.  The system’s organs took the challenge of improvement very seriously, and they succeeded.  The new procedures will be clearer, more methodical, will avoid unnecessary repetition, and will be more open to individual participation.

          Given their significance and transcendence, these reforms must be given sufficient support and allowed enough time to function and to be evaluated.  In this sense, the adoption of an additional protocol granting victims direct access to the Inter-American Court should be examined after these regulatory reforms have been evaluated.  This position does not mean that we are opposed to such a development, one that I personally have supported since I participated in the first cases brought before the Court more than fifteen years ago.[6]  To the contrary, it means acknowledging that the new Rules of Procedure will help facilitate petitioners’ access to the Court.  Legal changes are more likely to be successful when they are declarative, in other words when they reflect a transformation that for the most part already has occurred in practice.   It therefore makes sense now to give the new Rules of Procedure a chance to develop in practice.  In this regard, the Commission’s new Rules of Procedure contemplate the following measures for increasing victim participation in Court proceedings:  consulting with the petitioner and the victim concerning their position on referring the case to the Court (Article 43(3)); taking into account the petitioner’s opinion when deciding whether to remit the case to the Court and introducing the assumption that all cases will be referred to the Court (Article 44 paragraphs 1 y 2); participation of the individual in preparing the application to be presented before the Court (Article 71); and the possibility that the victim will be included as one of the Commission’s delegates before the Court (Article 69.(1)).

          Madame Chair, the transcendental changes made to the Commission and Court’s Rules of Procedure require that member states give their full political support to the organs.  We understand that the three key measures that must be adopted during the next General Assembly are allocation of the necessary funds to the organs, the creation of a specific mechanism that will enable the political organs to promote compliance with Commission and Court decisions, and the obligation of states to incorporate international human rights norms into their national regimes.

          At the same time, the new Rules of Procedure adopted by the Commission and the Court must be accorded a reasonable amount of time to work to avoid embarking on a dangerous spiral of reform.  This will give us time to evaluate the results, assess the benefits, and identify any unforeseen or unresolved problems.

          4.    UNIVERSAL RATIFICATION

          Ladies and gentlemen, it is not news to anyone here present that the inter-American system in our region encompasses three levels of adherence:  One is universal and minimum for all member states whose inhabitants are protected by the rights recognized in the American Declaration, through the Inter-American Commission.[7]  The second level refers to member states that have ratified the American Convention but have not accepted the jurisdiction of the Court,[8] and the third level includes those who have ratified the Convention and accept the jurisdiction of the Court.[9]

          Obviously this system is far from ideal.[10]  From the human rights standpoint, it creates a disadvantage for the inhabitants of important countries in the region in terms of the international protection of their rights.  The Commission, therefore, supports the Government of Brazil’s proposal that member states report periodically on the measures taken to ratify the Convention and other instruments and the obstacles they face in achieving this goal.  This proposal, modeled in part on the system used by the International Labor Organization,[11] will surely take the debate over universal ratification to a new level.

          The IACHR is convinced that publicity and transparency are key to a democratic system.  Therefore, and as a complement to the Brazilian proposal, we would like to suggest that the respective resolution adopted at the next General Assembly include an appendix indicating which states have not ratified the respective instruments and which have not accepted the jurisdiction of the Court.  In this way, the General Assembly’s call for universal ratification will not be simply an abstract exercise, but will be clearly directed to those countries listed in the proposed appendix.

          The IACHR is aware that the system has universal significance through the American Declaration.  And the IACHR is not blind to the fact that some countries that have failed to ratify the Convention offer a level of human rights protection comparable to the regional ideal.  Nonetheless, there is a clear negative message in the failure to ratify the Convention and accept the jurisdiction of the Court.  We run the risk of limiting the universal value of the protection mechanism.  In a hemisphere rapidly moving toward integration, human rights must not be left behind.

          5.    COMPLIANCE WITH DECISIONS OF THE HUMAN RIGHTS ORGANS AND COLLECTIVE SUPERVISION BY THE POLITICAL ORGANS OF THE ORGANIZATION

          Madame Chair, while compliance with resolutions issued by the Commission and the Court has increased when compared to the period when many dictators reigned in the Hemisphere, the situation remains far from satisfactory.  What is striking though is that the political organs of the OAS showed more initiative in supporting the Commission’s decisions during those dictatorships than they do now (only recently has the Court issued judgments on contentious cases from 1987).[12]  It is common knowledge that democratic countries, among them Mexico, Venezuela, and the United States, made serious efforts to support the effective action of the Commission during those years and to encourage debate in the Permanent Council and the General Assembly over compliance with Commission recommendations regarding countries engaged in serious human rights abuses.  Today, however, and despite the winds of democracy blowing across the Hemisphere, the political organs of the OAS are not sufficiently active as collective guardians of the system.

          More than 140 years ago, Juan Bautista Alberdi, the visionary behind the Argentine Constitution which remains very much in force today,[13] was already talking about the importance of the collective guarantee of respect for human rights.  Alberdi maintained that:  “Each treaty will be an anchor of freedom affixed to the Constitution.  Should this be violated by a national authority, it will not be the part contained in the treaties, which the signatory nations will enforce; and as long as some guarantees hold fast, the country will preserve the inviolability of one part of its Constitution, and this soon will lead to the reinstatement of the other part.”

          It is imperative that the next General Assembly in San Jose adopt the necessary measures that will enable states to act as collective guarantors of the system.  The IACHR is convinced that the proposals presented by various states on the establishment of an annual review procedure by the Permanent Council and the General Assembly to assess compliance with Commission and Court decisions would constitute a major step forward in this direction and they have our firm support.

          The IACHR has followed with interest the debates and decisions adopted in Quebec regarding the inclusion of a democracy clause linked to the regional free trade agreement.  It seems to us that this laudable step should explicitly include compliance with decisions issued by human rights organs as a valid factor in evaluating whether a government is indeed democratic.  After all, defining what is democracy is precisely the purpose of human rights norms, inter alia, separation of powers, independence of the judiciary, due process, equality under the law, political freedoms, freedom of expression, association, and religion.  It is worth pointing out that in the European Council failure to comply with decisions issued by human rights organs is punishable by sanctions, including exclusion from the regional system.[14]

          6.    INCORPORATING INTERNATIONAL OBLIGATIONS INTO THE DOMESTIC REGIME

          According to the Convention, member states not only must ensure that all individuals subject to their jurisdiction enjoy the rights and freedoms recognized therein, but also must give legal effect to these rights and freedoms in their domestic legislation, and ensure that existing standards are interpreted in keeping with them (Article 2).  As a corollary to this, states may find themselves in the position of having to amend or even derogate domestic laws incompatible with the obligations acquired under the Convention.  Member states are also obliged to provide judicial remedy for those who believe that their rights and freedoms have been violated (Article 25).  The Convention’s rule of prior exhaustion of domestic remedies (Article 46) is premised on the notion that the state must have the means to rectify a situation that has arisen within its own jurisdiction.

          It is worrisome, therefore, that the Commission must handle numerous cases in which member states have failed to implement in their domestic legislation the rights enshrined in the Convention or in which judges apply internal legal standards in a way that is openly incompatible with obligations acquired under the Convention.  Obviously, if these rights are not recognized in domestic legislation, there can be no effective domestic remedy to redress the consequences when they are violated.  Since member states are the primary guarantors of the human rights enshrined in the American Convention, their compliance with this officially acquired responsibility merits a certain degree of reflection.

          In order to improve the system, member states must adopt the legislative measures necessary to ensure that legal mechanisms exist to implement internally the decisions adopted by the Commission and the Court.[15]  In recent years, several countries have adopted such measures, but it is important to continue making progress in this direction.[16]

          Madame Chair, with the advent of democratically elected governments in every country in the region except Cuba, the political constitutions of many OAS member states have incorporated the standards set forth in international treaties.  In some cases, this has been accomplished through a general reference to these instruments, while in others it is more explicit.[17]  This is an essential step in the right direction that must be accompanied by specific provisions to give legal effect to the guaranteed rights and by the active participation of judges in making use of international human rights standards.[18]  An important contribution to improving the inter-American system would be for the legislative branches in our countries to adopt all the provisions necessary to guarantee the rights recognized in the international regime, and to amend or derogate all provisions in contravention of international human rights treaties.  The judiciaries, for their part, should fully apply treaty provisions and the jurisprudence emanating from the Commission and the Court.[19]  One of the strengths of the European system is that the legislative branches continuously review their domestic legislation in order to ensure its compatibility with decisions issued by the European Court of Human Rights.  Moreover, European judges, even those presiding over the highest courts, regularly take into account and invoke decisions emanating from the Strasbourg organs.[20]

          7.    THE NEED FOR INCREASED FUNDING

          Ladies and gentlemen, I must point out that the Commission is processing over 900 individual cases.  Over the past four years, the Commission has made two and three on-site visits per year to member states, each of which cost between US$30,000 and US$100,000 depending on their duration, the number of Commissioners participating, and the place visited.  In addition, 23 contentious cases and 30 provisional measures are pending before the Inter-American Court of Human Rights.  The costs of carrying out this invaluable work for the protection of human rights will rise, since the new Rules of Procedure adopted by the Commission and the Court will lead to an increase in the number of cases before the Court.

          The sad truth, however, is that the Commission’s total budget for the current fiscal year represents less than 3.4 percent of the overall budget of the Organization.  Approximately two thirds of the Commission’s total budget is earmarked for staff salaries and benefits.  The remaining amount barely covers the costs of preparing and holding two regular sessions and one special session, the publication of our annual report, performance contracts, supplies, and other similar categories.  This means that the budget does not include sufficient funds for a single on-site visit to a member state or for litigating cases before the Court.  The Commission, therefore, must rely on the generous voluntary contributions of certain member states and on the philanthropic spirit of several European countries for funding to carry out this essential aspect of its mandate.  Member states of the Organization should find this cause for concern.

          Our heads of state are well aware of these needs.  For this reason, recently, in Quebec, they expressed the need for a substantial increase in funding for the operations of the current Commission and the Court.  Moreover, they specifically charged the thirty-first regular session of the General Assembly of the OAS, to be held in San Jose, Costa Rica, in June of this year, to initiate actions to accomplish this aim.

          The Commission appreciates the fact that strengthening the system has been declared the pivotal issue for the upcoming General Assembly in San Jose.  At that time, we hope that member states will significantly increase funding for the Commission and the Court as an essential step toward accomplishing the goals for strengthening the system established by member states, and in keeping with the mandate assigned to us by our presidents and heads of state.

          Increased funding must be earmarked for institutional strengthening of the organs, which must enjoy the autonomy necessary to decide how to utilize the additional resources according to their needs and development strategies including, in the medium term, progress towards the permanence of the Commission and the Court.  The Commission supports the idea of making the organs permanent as a goal for the medium term.  At the same time, it understands that the gradual process toward permanent organs might involve different alternatives and approaches, which must be decided by the Commission and the Court.  The decision must be based on the work methods and specific needs of each of the organs, and on the attributes, based on the Convention and regulations, of its members, presidents, boards of officers, and working groups.  For example, should it receive the necessary funding, among the options being considered by the Commission for attaining permanence in the medium term are hiring more attorneys, gradually extending its regular sessions,[21] holding a new regular session, or having the working group on admissibility meet more frequently or for longer periods.[22]

          8.    CONCLUSION

          Ladies and gentlemen, the Commission believes that we are all striving for the effective promotion and protection of human rights in the region.  The system and its improvement are a means to this important end.  Any reform or improvement process, therefore, must move in the direction of broadening the protection of rights.  The inter-American system has saved and continues to save lives.  In the past, it has helped open democratic spaces and it currently contributes to consolidating democracy in our countries.  It has fought against impunity and now helps to bring justice and reparations to victims of human rights violations and, in doing so, contributes to the Rule of Law.  Together, we will continue on this path toward an America united in protecting values fundamental for human dignity.

          Thank you very much.