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PRESENTATION
OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AT THE FIRST MEETING OF
THE AD HOC WORKING GROUP FOR HUMAN RIGHTS I
would like first to express my gratitude for this opportunity to present
the opinions of the Inter-American Commission on Human Rights to this Ad
Hoc Working Group, whose creation demonstrates the interest of the member
states to strengthen the inter-American system for the protection of human
rights and whose outcome we hope will be to enhance and improve protection
for the fundamental rights of the peoples of the Hemisphere.
I would also like to express the Commission’s satisfaction with
the seminar it recently concluded with the Inter-American Court; it will
come as no surprise to you that the two organs share a common outlook on
what is needed to strengthen the system and how it can be done. Before
addressing the issues raised in the framework of this Ad Hoc Working
Group, we should point out that any realistic debate on strengthening the
system should be based on the current situation of human rights in the
Hemisphere. Legitimate
democracy, periodic elections, a well-structured civil society, and
governments and peoples seeking to enhance protection and promotion of
human rights are positive aspects and open up huge possibilities.
At the same time, we face immense challenges. Reality
shows that our peoples suffer violence, discrimination, and exclusion.
We live in a context in which millions of men, women, and children
lack the resources to satisfy their basic needs and obtain equitable
access to education and basic services.
Economic exclusion is compounded by the exclusion generated by
discrimination and obstacles to free dissemination of information that
undermine the exercise of democracy. Sadly, even now, 70% of the cases before the Commission
concern violations of the right to life.
The use of torture as a form of punishment or means to obtain
information has not been eliminated from the region.
Prison conditions fail to meet minimum standards, and more than 70%
of prisoners have not been convicted. Added
to this are systems of justice administration that very often do not offer
guarantees of independence, impartiality, and effectiveness.
In many countries the workings of judicial systems are plagued with
basic shortcomings that, for instance, prevent effective access to justice
for citizens of limited means; or cast doubt on the impartiality of
judges, owing to structural problems such as the non-permanence of their
posts, judgments delivered by military courts, widespread corruption, and
fear of reprisal. These
problems, inter alia, have
resulted in impunity and weakened or even destroyed confidence in the
Judiciary and, consequently, the rule of law.
Given
this panorama, the regional protection system for the fundamental rights
of our peoples now, more than ever, needs mechanisms that make it possible
to assess this situation and take appropriate action, as well as bodies
capable of effectively carrying out their mandate and whose decisions have
the backing of the members of the Organization as collective guarantors of
respect for fundamental rights in the Hemisphere. With
all due respect to this Working Group, the Commission believes that
discussions on strengthening the system should center on the following
aspects. 1.
Respect for international
obligations by member states and the subsidiary nature of the system The main
responsibility for ensuring respect for the rights protected by the system
lies with the member states themselves, in particular with their
respective judiciaries. Accordingly,
it would be important for the Ad Hoc Working Group to reflect not only on
the ways in which the Commission and the Court exercise their supervisory
powers, but also on the responsibilities of both the States Parties and
the political bodies in the system established by the Organization.
The system’s
norms provide that the states not only undertake to ensure to all persons
subject to their jurisdiction the rights and freedoms recognized therein,
but also to give legal effect to those rights and freedoms in the domestic
sphere and to harmonize interpretation of the laws in force. Consequently,
we propose that the states amend, or even abolish, any domestic provisions
that may be at odds with obligations acquired in the framework of the
inter-American system of human rights. The States Parties would,
therefore, be under obligation to provide legal remedies to any persons
who consider their rights and freedoms to have been violated.
The rule of prior exhaustion of domestic remedies provided for in
the Convention is based on the principle that a state must have the
possibility of providing redress for the violation within the framework of
its own jurisdiction. Consequently, the international protection provided
by the supervisory bodies is, essentially, of a subsidiary nature.
In keeping therewith, the relevant documents clearly refer to
international protection as a system designed to reinforce or complement
the protection provided by the domestic law of the American states. The Commission
finds itself increasingly compelled, however, to deal with concrete cases
where States Parties have failed to make Convention-backed rights
operative under domestic law or where judges have applied norms of
domestic law in contravention of the obligations freely contracted under
the Convention. Clearly, if
such rights are not recognized under domestic law, there can be no
effective domestic remedies to redress their violations. Happily – and
this is a very positive aspect, certain States Parties have adopted
specific measures aimed at ensuring and facilitating compliance with their
obligations adopted under the system’s norms.
For example, some states directly incorporate provisions contained
in human rights instruments into domestic law, while others assign those
instruments priority status over domestic law. Inasmuch as States Parties
have primary responsibility for safeguarding the human rights guaranteed
under the American Convention, some reflection on how these states are
discharging their solemn responsibilities in this respect might be in
order. 2.
Compliance with the decisions and orders of supervisory bodies One
vital aspect for strengthening the system is compliance with the decisions
of the Court and with the reports of the Commission. In that respect, it is worth reiterating the obligation of
the states to establish domestic procedures for enabling such compliance.
As the Commission pointed out at the General Assembly in June 1999,
such compliance is crucial to the vitality and integrity of this
Organization’s human rights system.
The Commission recalls that Article 68 of the American Convention
declares categorically that, "the States Parties to the Convention
undertake to comply with the judgment of the Court in any case to which
they are parties." Insofar as the Commission is concerned, its
reports are valid interpretations of the obligations freely acquired by
the states. If a state does
not concur with those interpretations it is at liberty to appeal to the
Inter-American Court, in order to dispute the Commission's conclusions and
procedures. It is significant
that, to date, no state has ever lodged an appeal against the reports of
the Commission in contentious cases.
3.
The role of the political bodies of the OAS in strengthening the
system The
political bodies of the OAS have a pivotal role to play in ensuring
compliance with the decisions of the organs of protection. Strengthening the system does not depend solely on, nor is it
confined to, the functioning of the supervisory bodies. In the final
analysis, the effectiveness of the system depends on the action that the
political bodies are prepared to take against those who disregard their
international obligations. The
states and the political bodies stand as the collective guarantee of
compliance with human rights norms. To that end, at the very least it is
necessary to discuss reports on human rights violations, as well as
noncompliance with decisions of the political bodies whenever they occur.
As the Commission mentioned at the General Assembly, noncompliance
with the binding decisions and orders of the Inter-American Court is
extremely troubling and merits serious discussion and appropriate action
by the political bodies of the Organization.
We believe that both the future of the system and the credibility
of those political bodies and of the process of change, in which they are
caught up, depend on this. 4.
Enhancement of procedural norms and practices in force The Commission
believes that the workings of the system can be improved by modifying
certain procedural practices and norms relating to the individual cases
system. The Commission is
convinced that a process of this nature can, for the time being, be
effectively addressed by making appropriate amendments to the regulations
of the organs of protection, in a process of "trial and error,"
through which the requisite experience can be developed for gradually
adapting the system to needs as regards protection and promotion of human
rights. A wealth of
meaningful experience has been progressively developed, for instance, in
the individual cases system. Individual petitions were initially examined
using procedures developed at a time of widespread and systematic
violations in the Hemisphere, which required a very flexible and swift
approach on the part of the Commission.
In consequence, the norms and practices at that time did not follow
a strict sequence, and the then-incipient case law of the system's organs
covered fundamental rights. With the
culmination of this stage, and in the light of parameters that were
progressively set out by the Court, the Commission began a process of
adjusting its procedures. This
process has involved modification and consolidation of a series of
procedural practices, as well as periodic exchanges with the Court in
order to discuss problems of procedure deriving from particular
interpretations of the American Convention.
Included among the practices introduced over the last four years is
that of recording petitions received according to certain common
parameters, the aim being to ensure transparency and uniformity and to
prepare statistics. It is
worth mentioning that only 33% of petitions received are opened as cases,
which reveals the prudence that the Commission exercises in carrying out
its quasi-judicial mandate. The
Commission has also expressly incorporated so-called fourth-instance
doctrine in its case law, under which it refrains from re-examining events
or offering interpretations of domestic law, except where flagrant
violations of the provisions contained in the Convention or the American
Declaration are concerned, thereby showing due deference to the
independent judicial branches that protect access to justice for
individuals. The conclusions
reached in the seminar held by the Commission in December 1996, which was
attended by the states and the foremost experts in the area, revealed that
the majority of the issues raised–some of which are no different from
some of those that have led to the creation of this Ad Hoc Working
Group–must be addressed through an ongoing process of improvement of the
respective regulations of the system's organs so as not to undermine the
legitimacy of basic treaties by making substantial reforms that elicit
little support in practice. The
Commission's study initially focused on ways to improve its regulations,
to which end it consulted users of the system and the States Parties.
Obviously the Commission will also take into account the
discussions held by the illustrious Ad Hoc Working Group and during the
dialogue conducted within the Committee on Juridical and Political Affairs
of the OAS. We would like to
thank the large number of states that have brought to our attention their
points of view. Although the
proposals are diverse and varied, there is, nevertheless, one area on
which the states, petitioners, and the Commission all agree: the
Commission cannot remain in the ambiguous position of preliminary
adjudicator and prosecutor before the Court.
The Commission is convinced that its role before the Court should
be limited to broad representation of the high interests of the
Convention, and to reserve representation of private interests for those
victims who, given their situation, expressly request it.
It should be made clear that achieving a system in which victims
choose their representatives before the Court–after the Commission
refers their case–does not require modification of the American
Convention or conclusion of a special protocol.
If the desired aim were to establish the right of individuals to
present cases directly before the Court–which under current provisions
only the Commission and the States Parties may do–the only way to
achieve that is through a special protocol, which, as the Commission has
stressed, can be perfectly well dispensed with. Independent
representation of victims before the Court only requires issuing a few
regulatory provisions. This
is a solution that has the full backing of the system's users and has been
successfully in effect since 1997 in the reparations phase of proceedings,
which proves that the system is capable of bearing the additional
administrative burden which that represents.
We must express our enthusiasm following our recent meeting with
the Court to coordinate viewpoints, in which the Court declared its
support for continuing with the process of reforming its Rules of
Procedure to permit the Commission and victims to have the role to which
we aspire. By the same token,
we have made progress with the Court on the evidence-gathering system to
avoid needless duplication and costs. 5. Increase in the
material resources of the system's organs
While recognizing the commitment demonstrated by the member states
in designating the Commission as an area of priority financing within the
Organization, the Commission's capacity to fulfill its mandate more
effectively requires a matching commitment in allocation of financial and
human resources. A budget
increase in the mid-1990s helped to boost the Commission's productivity in
recent years. Today the system requires more resources for dealing with the
challenges that arise. The sad reality
indicates that the total amount of the Commission's budget for the
financial year in progress, which is US$2.9 million, represents less than
3.7% of the Organization's overall budget.
Approximately US$2 million of those US$2.9 million are earmarked
for the salaries and benefits of Commission employees.
The remainder barely covers the costs incurred by the preparations
for and holding of two regular sessions and one special session,
publication of our Annual Report, performance contracts, supplies, and
similar items. This means
that the budget does not provide sufficient funds for on-site visits to
member states and litigation of individual cases before the Court.
I should point out, incidentally, that in the past four years the
Commission has carried out between two and three on-site visits per year
at the request of member states. Furthermore, there are currently 23
contentious cases and more than 10 applications for provisional measures
pending before the Inter-American Court of Human Rights.
In sum, the Commission needs a considerable injection of fresh
financial resources to cover the minimum cost of processing nearly 1,000
open cases, proceedings before the Court, requests for visits from states,
and its other duties. 6. The participation of the
Inter-American Institute of Human Rights and civil society in
strengthening the system The debate on
strengthening the system of protection must, by necessity, involve the
participation of the Inter-American Institute of Human Rights and of civil
society, as the General Assembly of the OAS expressly pointed out in
resolution AG/RES. 1633 (XXIX-O/99). In recent years the Institute and
civil society have made a crucial contribution to the promotion and
protection of human rights in the Hemisphere, as well as to the workings
of the system. The system
needs their vision and participation.
Furthermore, there is no reason for not holding a debate of such
vital importance in conditions of transparency and openness in order to
ensure the best possible outcome. We
take the liberty of recommending that the Institute and representatives of
civil society be invited to set out their points of view at the next
meeting of the Ad Hoc Working Group.
We hope that this meeting establishes a mechanism that ensures they
are appropriately consulted. The Commission
considers that these six points represent the main aspects for the Ad Hoc
Working Group to take into account in addressing the issue of
strengthening and improving the system.
In recent
months, a series of proposals seemingly designed to strengthen the system
have come to the attention of the Commission.
The most ambitious proposal that has been put forward is to merge
the organs of protection in the manner of Protocol Nº 11 to the
Convention for the Protection of Human Rights and Fundamental Freedoms.
Placing the system of international protection under the complete
control of a judicial organ–necessarily accompanied by the right of the
individual in any of the States Parties to file suit directly against the
states before an international court–is something that has recently
entered into effect in Europe, together with substantial advances in the
unification process of a number of countries, such as elimination of all
import taxes and adoption of a single currency. This process denotes a
generalized consensus. However, the
incorporation of the countries of Eastern Europe in the European system
has created great tensions by swamping the system with thousands of cases
a week. At the seminar that
the IACHR held in Washington in 1996, the European participants questioned
the wisdom of having reduced the flexibility of the European system and
having exposed it to tensions of great magnitude. They also had a high
opinion of the two-organ system in our Hemisphere, which makes it possible
to filter out petitions that would otherwise overwhelm the system.
They also thought highly of the alternative whereby the Commission
refers some cases to the Court, while in respect of others it decides only
to inform the public and the states.
Added to the foregoing is the Commission's power to carry out
on-site visits on the initiative of states for diverse reasons (violations
of rights, to consolidate progress, to assess categories of law, etc.).
These powers and techniques are the outcome of a rich and valuable
historical experience, and reflect the need to understand and act in a
complex reality that combines judicial and semi-judicial action for the
sake of protection of human rights. An example of
this flexibility in action and of the value of the Commission's activities
is its role of encouraging friendly settlement of cases.
Indeed, as well as acting as a "filter" for the huge
volume of individual petitions received each year, the Commission has
performed the role of mediator or entity that notifies the parties in
order to help reach friendly settlement of cases, to which end it employs
techniques that are not available to a court of law, such as
confidentiality of discussions and proposals, divisibility of matters
submitted to it, isolation of differences, etc., thereby making it
possible for disputes in a considerable number of cases to be settled in a
friendly manner. The Commission
has also developed practices that enable it to bring to the attention of
states situations that may lead to violations of the right to life and to
humane treatment, without need to adopt precautionary measures or to
request the Court to order provisional measures.
This mechanism has proved to be immensely useful for all parties
involved. Accordingly, the
presence of the Commission in Washington, where it is able permanently to
make available its services to the states and organs of the OAS through
its semi-judicial functions, must also be valued and acknowledged as
having been of immense use in the protection of human rights. Finally, the
Commission should mention that regardless of the process of change that is
embarked on, it must allow, after achieving the necessary maturity, for
greater universality in the application of all the system’s norms.
At the same time, we should be aware that any amendment that
affects the jurisdiction of the Commission may leave unprotected the
inhabitants of the member states that have not ratified the Convention.
All that
remains is to reiterate that any reflection or process undertaken must
lead to a real strengthening of the supervisory bodies so that they can
carry out their mandate to protect the men, women, and children of the
Hemisphere in a more effective manner, as well as to the exercise of the
collective guarantee that the political bodies have a duty to provide in
order to ensure effective defense of human rights. To that end, it
is necessary to continue making improvements to the appropriate
regulations, to grant sufficient resources, and to strengthen political
will in support of the system. The Commission participates in an eager and
committed manner toward those objectives, by whose accomplishment history,
future generations, freedom, and human rights will judge us. Accordingly,
the Inter-American Commission on Human Rights wants to make it perfectly
clear that it wishes this Ad Hoc Working Group every success in its
efforts, and that our recommendations are based on the common desire to
proceed in consensus down paths that will doubtless open up opportunities
for all of us, together, to forge the utopia of a more equal and fair
society in which human rights form the very basis of the democratic state. The Commission
is convinced, given the high level of the members of the Working Group,
that this aim will indeed be fulfilled. Thank you very much. |