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SPEECH BY THE CHAIRMAN OF THE INTER-AMERICAN
COMMISSION ON Washington, D.C., February 22, 1999
Mr. Chairman of the Permanent Council, Mr. Assistant Secretary General, Permanent Representatives, Observers, members of the Inter-American Commission on Human Rights, Mr. Executive Secretary of the Commission and other members of its Secretariat, ladies and gentlemen: As Chairman of the Inter-American Commission on Human Rights, it is a great honor for me to open formally its one hundred and second session. Its current members, Messrs. Robert K. Goldman, First Vice-Chairman; Jean Joseph Exumé, Second Vice-Chairman; Alvaro Tirado, Claudio Grossman, Helio Bicudo, Henry Forde, and I will participate in this session. During this session, the Commission will hold 46 hearings on cases pending or on the general human rights situation in countries of the Hemisphere, and it will render decisions on the following matters: individual cases, including reports pertaining to admissibility, inadmissibility, the merits of disputes, and publication; the referral of cases to the Inter-American Court on Human Rights; upcoming in loco visits; and the work of rapporteurs for specific topics. Moreover, during these sessions, the Commission will adopt decisions on general country reports, and other matters under its purview. During the last regular session of IACHR held from September 24 to October 13, 1998, the Commission adopted a total of thirty-six substantive reports on cases, and decided to publish three reports on inadmissibility and ten on admissibility. The Commission also approved and published the "Report on the General Human Rights Situation in Mexico." The IACHR was pleased to receive positive feedback regarding the report from both the Mexican Government and non-governmental human rights organizations. During that session, the IACHR held a joint meeting with the Inter-American Court of Human Rights on October 12, 1998. The Commission underscores the importance of these annual meetings with the Inter-American Court, since they make it possible to develop a joint agenda in the area of human rights protection, a task entrusted to both organs of the system. Since the conclusion of its one hundredth regular session, the Commission has conducted a series of activities in the exercise of the powers vested in it by its governing instruments. In fact, between November 9-13, 1998, the IACHR conducted an in loco visit to the Republic of Peru, during which it obtained additional information on the human rights situation in that country. During its visit, the Commission interviewed President Alberto Fujimori and several of his ministers, as well as representatives of the legislature and judiciary, the Ombudsman, the National Council of the Judiciary, and the Attorney General, as well as the pertinent reorganization commissions and their executive secretariats, among others. The Commission also held a host of meetings and interviews with representatives of non-governmental organizations and other civil society entities.
During its visit to Peru, the IACHR opened a temporary office in Lima, to which hundreds of persons came to file complaints regarding human rights violations. At the end of the visit, the Commission issued a press communiqué in which it reached a number of preliminary conclusions regarding the human rights situation in that country. On that occasion, the IACHR gave a brief account of progress made in that regard, such as the important work being done by the Ombudsman, and the elimination of the so-called "faceless judges" system. The Commission also provided information on its preliminary assessments in the areas in which it had received information and complaints regarding matters of concern that will be the subject of a thorough review, pertaining to the rule of law in a democratic and constitutional context, in such areas as the intervention of the Judiciary and Office of the Attorney General, the dissolution of the Constitutional Court, the right to due process, and freedom of expression. The IACHR is preparing a draft report on the human rights situation in Peru, in which it will state, in due course, its pertinent conclusions and recommendations.
During its one hundred and first special session, held December 8-9, 1998, the Commission adopted preliminary reports on five cases, and decided to publish admissibility reports on three cases. Moreover, in the exercise of its authority, the Commission drafted recommendations for OAS member states on the universal jurisdiction and ratification of the Statutes of the International Criminal Court, and on gaining access to the files and documents in State custody in order to investigate human rights crimes. In 1999, the Commission will conduct an in loco visit to Haiti in order to observe the general human rights situation there. It will also conduct specific in loco visits to several places in the United States of America, namely Texas, Florida, and Puerto Rico, on the invitation of the U.S. Government, in order to continue observation of matters related to immigration and migrant workers that it started last year in that country with visits to Los Angeles and San Diego. With regard to the report of Rapporteur for Migrant Workers, the Commission has continued to receive responses to the questionnaires sent to States and organizations, and continues to obtain information during general or special visits to countries and through its participation in specialized seminars and meetings. The Commission will submit a progress report on the activities conducted by that office of the rapporteur headed by Commissioner Alvaro Tirado Mejía. With regard to the activities of the Inter-American Court, we should stress that in addition to the proceedings in the 14 cases that it is handling and the request for an advisory opinion No. 16 in which the Commission is involved, the latter decided on December 17, 1998 to refer the case of "Olmedo Bustos et al." v. the Republic of Chile to the Court. This case pertains to the censorship imposed as a last resort by the Supreme Court of Chile with respect to a movie, which, based on the complaint and petition filed by the Commission, violates the right to freedom of expression and conscience, which is enshrined in the American Convention. This case, in addition to permitting justice to be served, will establish case law within the Inter-American system on the important topic of freedom of expression restrictions, derived from laws on censorship and their enforcement by government entities, including the courts. As a result, it will provide the impetus for adjustments to be made to the pertinent national laws and case law. Through its different areas of work, the Commission has been giving priority to the subject of freedom of expression, because of its great importance in preserving and improving democracy and the rule of law in member states of the Organization. Therefore, the Commission continues to receive and process important cases involving complaints of the violation by different States of this right, in the context of the violation of other human rights that include the right to life, freedom, and personal safety, the right to property, and due process. The Commission is also studying general and specific situations involving freedom of expression during its in loco visits, and is devoting a special chapter to this subject in its reports on the general human rights situation in different countries of the Hemisphere. With the support of member states, expressed in particular in the Declaration and Plan of Action adopted by the Heads of State and Government of the Americas meeting last year at the Santiago Summit, the Commission started the operations of a Office of the Special Rapporteur for Freedom of Expression that it had established a few months earlier. At its one hundredth session, it appointed Dr. Santiago Cantón as Special Rapporteur, on a competitive basis. The Special Rapporteur started his activities by accompanying the Commission on its aforementioned in loco visit to Peru, and has been participating in meetings and seminars in various countries of the region, in order to disseminate information on the Office of the Special Rapporteur and its initiatives pertaining to the network of journalists, aimed at providing an immediate response to assaults on freedom of expression. The Rapporteur will submit his report to the Commission, which will be made available to member states and the general public. Also, in my capacity as IACHR Rapporteur on the subject, I would like to refer to the review process by States of the Draft American Declaration on the Rights of Indigenous Populations, which the Commission submitted to the General Assembly. In my view, the meeting of government experts held at this location only a few days ago should be considered historic for several reasons; one of them being that, for the first time, formal, direct, sincere, and constructive dialogue was established between the representatives of OAS member states and the indigenous communities of the Hemisphere, with a view to moving towards the adoption of this important instrument. It is our hope that the initial review of the proposed articles, the preamble of which has already been completed, will take place soon, and that we can move forward with the process of consultation, final review, and final approval of the Declaration by the General Assembly. To that end, the Commission will continue to be available to States for open dialogue with the representatives of indigenous populations, to the extent permitted by its resources, experience, and mandate. With regard to the situation of the women in our Hemisphere, the Commission published, separately, the report of the Rapporteur, for purposes of circulation and discussion, with a view to promotion of its recommendations, which include elimination of the de jure and de facto forms of discrimination that still exist and the eradication of domestic violence of which the women of our Hemisphere are victims. In this regard, Rapporteur Claudio Grossman has held different meetings with groups and organizations, and the possibility of establishing a working group is under discussion.
The Commission’s other offices of the rapporteur for specific topics, including the new Office of the Rapporteur for Children’s Rights, headed by Commissioner Helio Bicudo, will present reports on their activities conducted and work plans during this session. Last year, the Commission concluded and implemented individual agreements on institutional cooperation with the Supreme Court of Venezuela and with the Constitutional Court of Colombia. We consider these agreements with national judicial authorities to be particularly important, because of their capacity for dissemination, the application of our case law by these courts, and the possibilities that they offer for enriching exchanges. This strategy is being explored in greater depth and is being extended to the agreements that we have concluded--and others that are pending--with universities and academic centers in the Hemisphere. As you are all aware, on December 9, 1998, the IACHR commemorated the fiftieth anniversary of the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights. We had the honor of sharing that celebration with Sr. Mary Robinson, United Nations High Commissioner for Human Rights. On that occasion, we also discussed initiatives for cooperation and the exchange of information between the two institutions, within the scope of authority set forth in the legal instruments that govern them, which will soon be implemented. Ladies and gentlemen: This year a very special anniversary is being commemorated: the fortieth anniversary of the establishment of the Inter-American Commission on Human Rights, which took place at the Fifth Consultative Meeting of Ministers of Foreign Affairs of the OAS in Santiago, Chile, in 1959. By means of a resolution adopted at that meeting, the representatives of member states of the Organization decided to establish this Commission, composed of seven members elected in a personal capacity, with responsibility for fostering respect for these rights. Beginning with that historic decision, the OAS embarked upon a new phase in its organization and development, based on a collective effort to ensure the observance of human rights. In so doing, the principle reaffirmed by the States of the Americas in 1948 in the Organization’s Charter, when they proclaimed the fundamental rights of humankind, without distinction based on race, nationality, creed, or sex, was being transformed into reality. However, beyond that, the human rights recognized in the 1948 American Declaration on the Rights and Duties of Man assumed, beginning in 1959, legal weight in the international sphere, when the newly-formed Commission was charged by member states with the mission of promoting respect for these rights. This inevitably implied recognition of transfer or limitation of the age-old medieval notions of the absolute sovereignty of nation States. This very important change therefore meant recognition of the human being as a subject of international law in the Americas. Although the Commission had been receiving individual communications informing it of the general situation in countries since 1960, it was not until 1965, when its Statutes were reformed, that the IACHR was formally vested with the authority to receive, process, and rule on individual petitions or complaints as cases. Since that time, the Commission has received more than 15,000 petitions, and recently it has been receiving almost 600 pieces of correspondence per year, with only about one-third of this number meeting the requirements to be processed as such. At the moment, the Commission has an average of 1,000 open cases, and every year it renders decisions in about one-third of the cases pending, through different procedures that include individual reports, the merging or consolidation of cases into reports, friendly settlements, the referral of cases to the Inter-American Court, and the filing of cases when appropriate. The inter-American system of human rights has therefore evolved greatly since 1948. Today, the system has an Inter-American Commission on Human Rights which was designated in the Charter as a principal organ since 1967. Its mission is to encourage observance and defense of these rights in all OAS member states. Furthermore, the system was strengthened in 1978 with the entry into force of the American Convention on Human Rights, with was ratified by 25 of the 35 member states. Our American Convention has been the object of additional Protocols, the first pertaining to economic, social, and cultural rights (known as the Protocol of San Salvador), and the second, regarding the abolition of the death penalty. The system also has three inter-American conventions on preventing and punishing torture, forced disappearance of persons, and the prevention, punishment, and eradication of violence against women (known as the Belem do Para Convention). In order to ensure the effective observance of human rights in the Hemisphere, all member states must, among other things, ratify all the inter-American instruments on this subject, including acceptance of the obligatory jurisdiction of the Inter-American Court. This will enable us to live up to the motto of the Universal Declaration "All Human Rights for All." In this regard, we were pleased to receive the declaration of acceptance of the obligatory contentious jurisdiction of the Inter-American Court of Human Rights last December by Brazil and Mexico, adding a total of 270 million inhabitants in the Hemisphere to the number of persons who enjoy full protection of the inter-American system of human rights. Also, in January of this year, Venezuela deposited the instrument of ratification of the Inter-American Convention on Forced Disappearance of Persons, bringing to six the number of OAS member states that have ratified this instrument. During that same month, Colombia deposited the instrument of ratification of the Inter-American Convention to Prevent and Punish Torture, bringing the number of States that have ratified this instrument to 14. It is important to stress that although the inter-American treaties on human rights have not yet been ratified by all member states, all these instruments have entered into force, with the sole and single exception of the Protocol of San Salvador. This Protocol, concluded more than ten years ago, has not yet entered into force because one more ratification is needed to obtain the 11 that are required. We hope that this call may be heeded, and that we can celebrate 40 years of the IACHR with entry into force of this system. In view of this trend towards the strengthening of our system, the IACHR has publicly expressed its concern over an unprecedented development in our midst: the termination by Trinidad and Tobago on May 26, 1998 of the American Convention, which will take effect on May 26, 1999. The most recent Regular OAS General Assembly, meeting in Caracas, issued a general plea for reconsideration of this termination, which we hope will be heeded, as happened within the United Nations. In this regard, the Commission reiterates the supremacy of international law over domestic law; and with respect to the death penalty cases in the Caribbean, we are working on a number of initiatives that include the adoption of reports and decisions, through specific case law applied by the instruments of the system, taking into account respect for domestic law, provided that it guarantees respect for human rights from both a substantive and procedural perspective, which include the right to life and due process. Ladies and gentlemen: At last we have a Hemisphere of democratically-elected leaders, with one exception. However, although democracy based on elections or representation is an absolutely necessary condition, it is not sufficient, in and of itself, to achieve full observance of human rights. Although in a number of States of the Hemisphere the persistence of institutional problems inherited from old authoritarian regimes is still evident, which include inefficient and corrupt police, who use torture as a investigative method, and who threaten rather than protect citizens; judges with little or no training in the area of international human rights instruments, and in particular, with no knowledge of the case law of the Inter-American Commission and Court as instruments of redress; Congresses or Parliaments that have not repealed old laws that violate human rights or thwart the exercise of these rights; the assignment of the armed forces to provide protection to citizens, based on an erroneous notion of national security, with disturbing consequences; and the expansion of military jurisdiction to prosecute human rights offenses, which leads to unacceptable situations of impunity and injustice. The IACHR is witnessing these and other serious problems as an on-site observer, which permits it to have first-hand information through the case system, in loco visits, country reports, and rapporteurs for specific topics. However, based on the observations of the IACHR, the reaction to the human rights cases resulting from those situations differs from one State to another. At the moment, the IACHR is witnessing a trend towards cooperation with the system by the majority of democratic States, which is reflected in the large number of cases that are being settled amicably, and in compliance with the recommendations of the Commission and the rulings of the Inter-American Court. However, at the same time, human rights continue to be viewed in a number of States as a mere problem of appearance and good name in international circles, and efforts are focused on trying to ensure that the image and prestige of the State are not compromised by human rights issues, which can even result in challenges to the organs of the system. We are fully aware of the fact that we are not infallible. However, because of this, the Inter-American system offers legal mechanisms for review of the decisions of its organs whose mission is to provide protection. The democratic system makes provisions for mechanisms through which government entities can acknowledge and resolve human rights problems internally, within a framework of rules and procedures. The Commission has an obligation to take action when efforts at the domestic level are insufficient or ineffective. According to a basic rule of international law, the violation of a protected right leads to international responsibility on the part of the State, which continues until the situation is resolved through the appropriate redress and remedies. For this reason, the Commission continues to use follow-up mechanisms in those cases where violations have been confirmed and published in a final report, but the State in question has not applied the recommended remedies. To date, one of the follow-up mechanisms has been the holding of hearings to which the parties are invited. The IACHR will also review the possible methodical organization of follow-up to its recommendations in the context of reform of its Regulations. Now that discussion has taken place of the strengthening of system within the political organs, the Commission must forge ahead with the complete reform of its Regulations, which will permit us to make our procedures more accurate and safer, while modernizing them and adapting them to new situations. The Commission has asked member states, non-governmental organizations that are processing cases within the system, and prominent experts for their ideas regarding reform of its Regulations. During this session, the IACHR will analyze the information received, in order to discuss the preparation of guidelines for carrying out this important reform. Ladies and gentlemen, this will not be a case of reforming for the sake of reforming, but of improving and strengthening the system. On the subject of reforms, we should remember the words of Antonio Machado, who exhorts us to be mindful of the advice he gave to his students, eloquently conveyed by Juan de Mairena: Amateur and professional reformers should be warned of the following:
Bearing in mind these words, the Commission will undertake the overall reform of its Regulations, with special emphasis on improving its methods and procedures. I have had the honor to begin an experiment within the Commission, by moving to its headquarters and staying there during my tenure, in order to devote my attention on a full-time basis to my duties as Chairman. This experiment, conducted with the context of statutory rules and regulations, has received the backing of the Commission, the General Assembly, the Secretary General, member states, and non-governmental organizations. It has been a unique experience, which has permitted me as Chairman to understand the system better and to support its work, and in so doing, the Commission has, as always, made headway. On this occasion, the IACHR would like to thank all member states and the Secretary General of the Organization for the decisive support that they have provided to it, in particular with regard to the Commission’s budget, which was approved by the 1999 Special General Assembly. Because of the important decision to give priority to human rights within the OAS, the Commission can continue the activities assigned to it by the instruments that oversee its work. On behalf of the people living in this Hemisphere, we appreciate this decision and are confident that in the future the same priority will be given to an area of work that is so vital to the OAS, a factor that is recognized both inside and outside the Organization. Ladies and gentlemen: Permit me to conclude on a more personal note, since this will be the last opportunity that I will have to address you as Chairman of the IACHR, although my term as a member of the Commission will end at the beginning of the year 2000. Despite the generous gesture of my country’s foreign minister in submitting my candidacy for immediate reelection, I have not been able to accept the honor bestowed upon me for a variety of academic, professional, and personal reasons. However, I will maintain my ties with the system, and, as a famous British politician would say, "I shall come back." I am aware of the fact that I am the youngest member and Chairman of the IACHR. My youthfulness has allowed to me to make some mistakes; however, God willing, it will also allow me to return to the system in the near future. Let me say something that comes from the bottom of my heart: these years have been, in a profound way, the most intense and fulfilling of my life. I have been able to serve my fellow man in a direct and altruistic manner. I have seen the face of God in the men, women, and children of this Hemisphere, and I have seen that in serving my fellow man, I am also serving God. The faces mirroring the hope placed in us will remain forever etched in my memory, as we embark upon roads where few have tread in our Hemisphere. How can I ever forget situations so intensely vivid as the meeting with the then Mayor of Puerto Asís in Putumayo, who was assassinated a few weeks later in the midst of armed conflict in Colombia, or the face of Mr. Restrepo as he shed tears of joy when the State of Ecuador acknowledged its international responsibility during a hearing before us, and pledged to ensure that justice would be done and to compensate him after many years for the forced disappearance of his two minor children. How can I ever forget the indigenous communities of Ejido Morelia or Acteal in Chiapas, Mexico, the Colotenango in Guatemala, the U’wa in Colombia, the Awas Tingi in Nicaragua, the Toledo-Maya in Belize, the Ayacucho in Peru, the Yanomami in Brazil, the Enxet people in Paraguay, the Mapuche in Chile, the Llalagua, Amaypampa, and Capasirca in Bolivia, the Huaorani in Ecuador, or the people who came together at the First Nations Assembly in Canada, and all the other faces of the indigenous populations in our Hemisphere, with whom we have been able to work closely, to share their suffering, and to ensure that justice was served in the cases referred to us. They are the poor of the poor in the Americas, and what is important to understand is that their aspiration is not to be rich, but to be treated with dignity and fairness as human beings. I think that all experiences are worthwhile and that individuals feel a sense of purpose when justice is served in situations awash with injustice. If we manage to save only one life, to prevent only one torture, to free only one individual subject to arbitrary detention, then all our efforts would be worth it. All these very real and specific experiences have permitted me at the same time to contemplate being a citizen of the Americas, of a single Hemisphere united not only by demand and supply markets but also by a common ideal, in our relentless quest to consolidate, within a framework of democratic institutions, a system of freedom and justice, based on respect for the dignity of the human being. I am an optimist. I believe that in the midst of a Hemisphere replete with contrast, ranging from armed internal conflict to glimmers of constitutional and democratic States governed by the rule of law, to incomplete transitions from old regimes, to dangers of authoritarian neopopulism, and even inefficient and manipulated justice systems, the trend towards democracy certainly appears irreversible. This trend is clearer within the OAS with the entry into force of the Protocol of Washington, which permits suspension of the exercise of the right to participation in the organs of the system, but not the suspension of the obligations assumed, in cases of removal by force of the democratically-elected government of a member State. This serves as collective reaffirmation that democracy involves the exercise of a human right, namely the right to political participation, and at the same time, that it is the only system that permits exercise of the other human rights. In other words, true democracy cannot exist without respect for human rights, just as it is not possible to conceive of respect for human rights without democracy. Moreover, let us be mindful that democracy means government by the majority, and that the rule of law is the guarantee of minorities, and that majorities usually become minorities and vice versa. I would also like to take this opportunity to thank those who have helped me over the years to carry out my work. First, as a good gentleman who observes the basic rules of chivalry, I must thank Carmen, my wife, who has been understanding and has been at my side, together with my two children, over the years, and from whom I must confess I have robbed more time than I initially promised. Second, I thank my colleagues at the Commission--those present and those whose term has ended--, from whom I have learned and continue to learn every day, and to whom I owe the success of my term, since I assume responsibility for the mistakes and failings made during my tenure. I would like to thank all member states for their assistance, in particular those with which I have worked more closely. I also express my thanks to the Secretary General of the OAS, Dr. César Gaviria, whose sincere commitment to the inter-American system has been reflected not only in words but also in deeds; to the Assistant Secretary General, Ambassador Christopher Thomas; to the head of the Executive Office of the Secretary General, Mr. Ricardo Avila, from whom I received decisive support in the administrative matters under his purview; to our Executive Secretary, Ambassador Jorge Taiana, whose competence and experience, coupled with his common sense, humility, and collegiality have made harmonious and solid work possible within our Commission; to the two Assistant Executive Secretaries: Dr. David Padilla, a good and old friend, whose professional experience and wholehearted commitment to human rights have been a source of inspiration to me, and Dr. Hernando Valencia Villa, whose legal integrity and team spirit have opened new vistas for our work; to our lawyers for their tireless daily work; to scholarship holders and interns; and to our administrator and secretaries, whose commitment to their work certainly serves as a model for this Organization. To all of you, thank you very much.
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