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CHAPTER V
AREAS IN WHICH FURTHER STEPS ARE NEEDED TO GIVE EFFECT TO HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
1. In its most recent annual reports, the Commission has presented to the General Assembly of the Organization various topics that it considered of special importance as concerns respect for and effectiveness of human rights. In this regard, the Commission has suggested the adoption of specific measures to make human rights, as defined in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, more effective. For its part, the General Assembly, in its resolutions, has endorsed several of the Commission’s recommendations.
2. In its Annual Report for 1982-1983, the Commission assigned special importance to the topic of forced disappearances; it pointed out the urgent need for continuing the work to make possible the prompt adoption of an inter-American convention defining torture as an international crime; it raised the need for preparing an Additional Protocol to the American Convention on Human Rights to define economic, social, and cultural rights and the establishment of a supervisory organ, and finally in that report, the Commission also reiterated its concern for the problem of refugees in the Americas.
3. With respect to the practice of forced disappearance in the Americas, the Commission recommended that this practice be considered a crime against humanity and urged the states in which disappearances had occurred to inform the relatives of the disappeared about their fate. In resolution AG/RES. 666 (XIII-O/83), on the Annual Report of the Commission, the General Assembly resolved in paragraphs 4 and 5, as follows:
4) To declare that the practice of forced disappearance of persons in the Americas is an affront to the conscience of the hemisphere and constitutes a crime against humanity.
5) To urge those states in which disappearances have occurred to clarify their situation and inform their relatives of their fate.
4. The Commission also proposed in its last Annual Report that the study of the draft convention defining torture as an international crime be concluded, and that the draft convention be approved. In this regard, in resolution AG/RES. 664 (XIII-O/83), the General Assembly extended the mandate given to the Permanent Council (through previous resolution of the General Assembly) so that the Council might continue the study and review of the draft convention, introduce any advisable changes in it, and submit them to the General Assembly at its fourteenth regular session, in 1984. A working group of the Permanent Council has made significant progress on this subject, for which reason the Commission considers that the Convention may be adopted during this session of the General Assembly or, if that should not be possible, to recommend that a Specialized Conference be convoked for that exclusive purpose, during 1985.
5. To reaffirm the importance of the economic, social, and cultural rights, the Commission in its previous Annual Report recommended to the General Assembly that a Specialized Conference be convoked to approve an Additional Protocol to the American Convention on Human Rights which would define those rights, indicate the competent organs for their protection, and establish suitable machinery for promoting their effectiveness. For its part in relation to this topic, the General Assembly, through resolution AG/RES. 657 (XIII-O/83), asked the Secretary General to submit to the governments of the member states, to the Inter-American Commission on Human Rights, and to the Inter-American Court of Human Rights the preliminary draft on this subject prepared by the General Secretariat. In that resolution it also authorized the Secretary General to invite the States Parties to the American Convention on Human Rights to hold a meeting, at whatever time they deem advisable, to consider the Preliminary Draft Additional Protocol, together with any observations and comments the member states of the Organization, as well as the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, may have presented regarding the Protocol. It also provided that the Secretary General should invite the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights to send representatives to that meeting.
6. Finally, among the recommendations made by the Commission in its Annual Report for 1982-1983, it proposed to the General Assembly that it take the necessary decisions to give institutional standing to an inter-American authority responsible for assistance to and protection of refugees in the hemisphere, establishing its relations with the Office of the United Nations High Commissioner for Refugees. The General Assembly did not reach a decision on this topic proposed by the Commission, but through resolution AG/RES. 665 (XIII-O/83), on displacements of persons in the region, it requested the Permanent Council to continue to report to the General Assembly on the status of work under the Cooperation Program of the Office of the United Nations High Commissioner for Refugees and the General Secretariat of the OAS.
7. While it reaffirms the importance of its earlier recommendations, the Commission will refer in detail to one of the recommendations made last year in relation to which, in the light of a more detailed study it has been preparing, it feels ready to contribute new considerations. That is the recommendation concerning the adoption of an Additional Protocol to the American Convention on Human Rights in the area of economic, social, and cultural rights.
8. At this time, also, the Commission will deliver one new recommendation to the supreme organ of the Organization, requesting it to urge the member states to include the teaching of human rights as a class subject in their official elementary and secondary school curricula.
II. ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
1. The Inter-American Commission on Human Rights has referred on several occasions to the importance of economic, social, and cultural rights as a basis and support of the dignity of the human being. In doing so, it has confirmed a long tradition in American legal thinking, embodied in eminent international instruments.
2. The basic work of the IACHR, nevertheless, has from the beginning of its activities centered on political and civil rights. There is a logic in this procedure that can be found in the very basis of the conception that those civil and political rights bring together about representative democracy. In fact, the individual and political guarantees that the effectiveness of those rights tends to ensure include as a basic assumption that the benefits derived from that effectiveness would be reflected in the economic, social, and cultural sphere. In other words, it was considered that a political order of representative democracy, by its very nature, should be translated into substantive improvements in the quality of life of the great majority, if not all, of the population. Work, health, education, suitable housing, and the like would flow necessarily and naturally as a result of the preservation of certain individual guarantees and of the rule of democratic institutions.
What the recent experience of Latin America and the Caribbean, in general, and of the Commission, in particular, has shown, however, is that there is no automatic and necessary relationship between the effectiveness of civil and political rights and the satisfaction of the basic needs of large sectors of the population. In this regard, it is not redundant to insist, once again, that the individual guarantees and political rights constitute values in themselves and therefore cannot be impaired, in any way, without attacking the dignity of the human individual.
In any event, in the Commission’s view, there is a close relationship between the effectiveness of economic, social, and cultural rights and that of civil and political rights, since both groups of rights constitute an indissoluble whole, upon which the recognition of the dignity of the human individual is based, for which reason both groups of rights require constant protection and promotion in order to achieve their full realization, and the sacrifice of some rights for the benefit of others can never be justified.
3. In the international legal field, as regards the protection of economic, social, and cultural rights, the Universal Declaration of Human Rights contains a definition which was later perfected, in its regulatory and operational aspects, in the U.N. International Covenant on Economic, Social, and Cultural Rights.
For its part, in the inter-American system, the American Declaration of the Rights and Duties of Man, of 1948, constitutes the first international instrument that defines economic, social, and cultural rights. The protection of the family, as well as of mothers and children, are governed by Articles VI and VII, respectively; Article XI refers to health including housing and food; education in Article XII, and participation in the benefits of culture in Article XIII; the right to work and to fair remuneration are set forth in Article XIV, which is completed by Article XV on the right to leisure time and Article XVI on the right to social security; finally, the right to property is recognized in Article XXIII.
Another important inter-American instrument related to this topic is the Inter-American Charter of Social Guarantees, of 1948, which regulates the right to work and the other rights connected to it, such as the work of women and of children, wages, collective bargaining and the right to strike, labor conditions, social security, and the like. This Charter constitutes a significant antecedent that remains timely in many of its aspects.
In the later process of preparation of standards, various rights recognized by the American Declaration and the Charter of Social Guarantees were incorporated into the Charter of the Organization of American States through its amendment by the protocol of Buenos Aires in 1967. Such was the case with the right to work, fair wages, and acceptable working conditions, dealt with in Articles 31(g) and 43(b); complemented by the right to form unions, to collective bargaining, and to strike, dealt with in Article 43(c); the right to health, Article 31(i), is complemented by the right to nutrition and food in subparagraph (j) of that article, while the right to adequate housing is recognized in subparagraph (k); and finally, the right to education is contemplated in Article 47.
4. It is appropriate to point out, however, that the rights incorporated into the Charter are considered in the context of the standards of international law applicable to relations among the American states, for which reason they do not constitute a base of standards that makes possible their international protection. In other words, that instrument does not recognize human rights, compliance with which may be claimed against a state, but rather it establishes objectives of economic and social development to be reached by the states through internal effort and international cooperation. Therefore, they cannot be treated jointly with the purely instrumental elements such as improvement of the administrative apparatus of the state, international trade, economic integration, tax reforms, and so forth. The list of those rights, moreover, is incomplete.
The Pact of San Jose adopted the perspective of considering economic, social, and cultural rights as objectives of development and not as values in themselves, in establishing in its Article 26, precisely under the title “Progressive Development,” the following:
The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation and other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires, Argentina.
The lack of precision of the standard cited, combined with the undeniable difficulty involved in the consideration of economic, social, and cultural rights, have brought about the inoperability, in practice, of Article 42 of the American Convention, which establishes the obligation of the member states to transmit to the Inter-American Commission on Human Rights a copy of each of the reports and studies that they submit annually to the Executive Committee of the Inter-American Economic and Social Council and the Inter-American Council for Education, Science, and Culture, so that the IACHR may monitor the promotion of the rights implicit in the standards set forth in the OAS Charter. This standard has been complemented by Article 60 of the Regulations of the Commission, which has also gone unimplemented in practice. However, it is necessary to point out that the Convention has already solved the problem of the institution responsible for the protection and promotion of the economic, social, and cultural rights, by entrusting this task to the Inter-American Commission on Human Rights. In addition, in advancing in the subject of operational mechanisms through the system of reports, it provides a basis for the IACHR to begin taking some specific actions in this field.
It is interesting to note that in the preparatory work for the Specialized Conference that adopted the American Convention on Human Rights full consideration was given to economic, social, and cultural rights. Such was the case with the draft conventions prepared by the Inter-American Juridical Committee, by the Government of Chile, and by the Government of Uruguay. Nevertheless, the solution adopted, which is reflected in the aforementioned Article 42 of the Convention, has, in practice, meant postponing the treatment of this matter.
5. The proposal made in 1982 by Costa Rica, that an Additional Protocol to the American Convention on Human Rights be prepared to deal with economic, social, and cultural rights meant to correct the voluntary omission of the Specialized Conference in not including in the text of the American Convention a provision approved by its Committee I, by which competence would be given to the Inter-American Commission on Human Rights so that it could promote the conclusion of a special convention or of protocols supplementary to the Pact of San Jose that would include those rights.
The Costa Rican initiative was taken up by resolutions of the General Assembly, first, AG/RES. 619 (XII-O/82), which instructed the General Secretariat to prepare a preliminary draft Additional Protocol to the American Convention on Human Rights defining the social, economic, and cultural rights and establishing the appropriate organs for their protection; and then AG/RES. 657 (XIII-O/83), which asked the Secretary General to submit to the governments of the member states, to the Commission, and to the Inter-American Court of Human Rights the preliminary draft prepared by the General Secretariat.
6. On the basis of this second resolution and of the competence assigned to it by the Charter of the OAS, the American Convention on Human Rights, and its Statute, the Commission has been carefully studying this matter, examining for this purpose the preliminary draft prepared by the General Secretariat, arranging for the preparation of specialized studies, and, as it has just done in Mexico, organizing jointly with the Institute of Legal Research of the University of Mexico a high-level seminar with the participation of qualified experts to deal with the subject of the international protection of economic, social, and cultural rights.
The Commission will later make very specific observations on the preliminary draft prepared by the General Secretariat, but at this time it would like to put forward some views regarding the formulation of rules and the institutional organization that could result from the aforementioned Additional Protocol.
7. As regards the structure of rules, in addition to the economic, social, and cultural rights in the General Secretariat’s preliminary draft, the Commission feels that it is important to include certain relevant groups in the Additional Protocol that have not yet been the object of international protection in the area of human rights such as the elderly, and the handicapped. This consideration is based on the fact that specific minorities, because of their particular characteristics and their position in society, need special attention in order to fully enjoy economic, social, and cultural rights. In fact, in order for these rights to have real effect with respect to these minorities, the state should adopt specific measures that go beyond those required in dealing with the majority of the population. Without that special consideration, the economic, social, and cultural rights of those groups will be radically diminished.
With respect to the elderly, by the fact of having gone beyond the active age, very often they are obliged to live under seriously unprotected conditions. As an especially vulnerable group, the elderly must receive priority attention from the government. Similar considerations apply to the handicapped, who, in addition, in very many cases constitute a rich human potential that is not used for lack of social conditions that would permit their personal and social self-realization.
As regards the formulation of the rules on the economic, social and cultural rights to be recognized in the proposed Protocol, it would appear advisable to follow the technique employed by the International Covenant on Economic, Social and Cultural Rights, that is to say, the standard must be made up of a statement of a general nature and of operational specifications that will constitute a guide for putting the rights set forth into practice. Prudence suggests that these operational specifications not be too exhaustive, even though they should not lose practical applicability.
8. The designation of an institution responsible for the protection and promotion of economic, social, and cultural rights is essential to the realization of an effective international control in this important subject. This choice will influence, from the very beginning the considerations of the state as to whether or not it is advisable to sign an instrument such as that proposed. The establishment, functions, and methods of control to be used by the aforementioned institution will make it possible to overcome the dilemma of having an international instrument that is advanced from a legal point of view but lacking in force for want of ratifications, or preparing a Protocol that will be acceptable to the states in its legal pronouncements but will lack practical effectiveness.
Operative mechanisms were also included in that treaty to gain an understanding and control of the evolution of those rights in the American states by establishing a system of reporting to the Inter-American Commission on Human Rights which entailed sending copies of reports rendered to the Executive Committee of CIES and CIECC.
The experience gained in the application of the international Covenant on Economic, Social, and Cultural Rights allows us to consider that the solution adopted by the American Convention of entrusting the operational aspects to an agency endowed with independence, such as the IACHR, was a wise one. In fact, there is a consensus among the experts in pointing out that one important element in the operational failure in the protection and promotion of those rights in the system of the Covenant has been leaving that matter within the sphere of a political agency such as the U.N. Economic and Social Council which eliminates, in practice, the participation of the Commission on Human Rights and ignoring the Committee. This fundamental aspect of the American Convention should, therefore, be maintained and strengthened.
Without prejudice to further consideration of the reporting system, it is pertinent here to refer to it in relation to the implications it has in regard to the establishment of the protective agency. State reports are central to evaluating the situation of economic, social and cultural rights. Nevertheless, their adequate consideration requires a profound knowledge not only of the subject dealt with, but also of the methodological elements employed in their preparation; the conclusions that may be drawn from these reports, and which ultimately will be the basis for the decisions.
At the present time there is no organ in the inter-American system that includes all the trained personnel needed to analyze and evaluate aspects so diverse and complex as those involved in the consideration of economic, social, and cultural rights. It is not surprising, therefore, that the IACHR is no exception. Nevertheless, the experiences it has had in dealing with those rights and in providing itself with the necessary means and resources could enable it to make constructive contributions in this respect. In this task, the inter-American system and the other international agencies connected with the problems of these rights from sectoral viewpoints have the capacity to contribute to that work.
It would be a question, therefore, of establishing formal relations for this purpose with the Inter-American Council for Education, Science, and Culture and with the Inter-American Economic and Social Council, as well as with the Pan American Health Organization. It would be desirable to have the active participation of other agencies that do not belong to the inter-American system but that by their activity are closely connected with the subject involved, as is the case with the International Labor Organization.
With regard to the mechanisms of control to be used by the organ entrusted with the protection and promotion of the economic, social, and cultural rights, consideration must be given to the system of reports referred to in the American Convention, and which is the mechanism used in the framework of the International Covenant. In addition, the possibility should be considered of granting individuals direct access to the Commission in the case of certain specific rights, such as the right to strike, for example.
With respect to the reports that the States Parties to the Protocol should present the system of sending copies of the reports submitted to CIES and CIECC contemplated in the Convention would have to be improved through the preparation of precise questionnaires. While it would be one common questionnaire, it could be adapted to the particular conditions of each state, in order to include consideration of specific aspects. The methodological aspects of these questionnaires must be carefully studied in order to make possible a correct evaluation of economic, social, and cultural rights. It is appropriate to point out that certain international bodies already have had significant experience in these systems.
The reporting system leads to consideration of the problem of the criteria to be used in the evaluation of economic, social, and cultural rights in the various countries. This aspect is crucial, as was already pointed out, to the extent that the protocol will have practical effect. In this connection, it would be unrealistic, taking into account the situation prevailing in Latin America and the Caribbean, to adopt a rigid criterion such as requiring immediate fulfillment of the obligations of the Protocol upon signing the instrument. On the other hand, it would be counterproductive to establish criteria so lax that they would imply, in practice, a lack of real control.
The criteria to be used, therefore, would have to take into account the progressive nature of the process through which efforts would be made to give effective force to economic, social, and cultural rights. One of those criteria would be of a comparative and temporal nature. For that, the situation in each country would have to be evaluated periodically, comparing the results obtained in one year with the situation regarding those rights in the preceding year. That would make it possible to determine progress or regression recorded over time.
Another criterion to be used would be that of the political will shown by a government to achieve the effectiveness of the rights in question. For that, the questionnaire should contain a special section designed to obtain information on the measures taken by the governments for that purpose. Consideration of those measures, together with the resources allocated for carrying them out, would make it possible to discern the priority each government gives to fulfilling the obligations assumed in the area of economic, social, and cultural rights.
The use of the criteria mentioned, and of others that may result from further consideration of this matter, would make it possible to reconcile the need for achieving effective international control with the requirement of progressive improvement involved in the nature of the subject under study.
9. On the basis of these considerations, and especially taking into account the conclusions reached by the Seminar on International Protection of Economic, Social, and Cultural Rights held in Mexico in August of this year, the Commission considers that the following general criteria would be useful for the preparation of the aforementioned Additional Protocol to the American Convention on Human Rights:
a. The proposed Additional Protocol should treat the economic, social, and cultural rights as rights that correspond to the human individual as such, and refrain from referring to them as goals or objectives of development. Consequently, they should be considered as the regulating axis of the economic, social, and political systems, and not as an aleatory result of the greater or lesser success of the development policies implemented. As human rights that they are, economic, social, and cultural rights, therefore, cannot be considered as desirable goals but must be considered as realizable imperatives.
b. With regard to the need for achieving full effectiveness of economic, social, and cultural rights for the entire population, it is important to consider that there are existing social groups whose specific characteristics and whose particular position in society require special treatment in order for them to attain full enjoyment of one or several of those rights. In that regard, it is appropriate to mention the situation of the Indian populations, of the elderly, and of the handicapped, considering that it would be necessary that, when appropriate, specific standards be included to give real effectiveness to economic, social, and cultural rights in relation to those groups.
c. In relation to the mechanisms of control to be used by the institution entrusted with the protection and promotion of economic, social, and cultural rights, it is considered advisable that they be suited to the characteristic of the right protected. Thus, for certain rights, the system in effect for civil and political rights could be applicable. That would be appropriate when the violation occurs because of a direct action of the state, that is to say, when the violation could be imputed directly and immediately to it and a change in the situation created would depend on it.
d. The nature of other economic, social, and cultural rights would require, as a control mechanism, the use of periodic compulsory reports to be sent by the states to the agency responsible for the protection and promotion of those rights, in order to be taken into account by it at the time of issuing its opinion on the matter. This system is suitable in relation to those rights whose full effectiveness will require a gradual process, and it will make it possible to evaluate the progress recorded. These advances could be evaluated with the aid of technical instruments that would make it possible to achieve the greatest possible objectivity. It would be a question, therefore, of evaluating specific results in relation to the economic, social, and cultural rights, thus avoiding the need for the institution responsible for their protection and promotion to express its opinion on the development policies and models themselves.
10. The considerations and proposals that have been stated confirm the enormous complexity of this subject. The Commission will continue to be concerned with it. At the same time, it invites the member states and the interested organs and agencies to present to the fifteenth regular session of the General Assembly, as it will do, specific proposals on the content of the projected Additional Protocol, especially with regard to the economic, social, and cultural rights that should be the object of protection and the institutional mechanisms that would be established to achieve adequate protection of those rights in the inter-American system.
III. THE TEACHING OF HUMAN RIGHTS
1. The very serious violations of human rights that have occurred in various Latin American states, as has been shown in Chapter IV of this report, are a cause for deep reflection.
The Commission observes that, although at this time, thanks to the replacement of military governments by democratic regimes, the predominant tendency in Latin America is of clear progress in relation to past situations, it is also true that the experiences of the immediate past and those that still persist in some countries leave as an unavoidable lesson the need for establishing mechanism that will help to make it possible that such aberrant and sorrowful events will never again be repeated.
Forced disappearances, illegal executions instigated or consented to by governmental authorities, the systematic practice of torture, prolonged detentions without charges or due process, administrative expulsions of nationals for an indefinite period of time, the Manichean division of society into those who possess truth and patriotism, and those who, as dissidents, are prevented from exercising inherent and inalienable rights, are situations that require reflection, especially since they have occurred in political societies which were designed to promote the freedom and dignity of the human individual.
2. Certainly, it is not for the Commission or for the political organs of the OAS to go into the causes of such generalized violations of human rights; but it is within their competence to encourage solutions to prevent those violations from occurring again.
3. Based on these considerations, the Commission, for example, proposed in 1978 the preparation of a convention defining torture as an international crime, and in the last few years is has insisted that the forced disappearance of persons be declared a crime against humanity, a decision which was adopted by the OAS General Assembly in 1983.
But these corrective measures, as important as they are, are not enough. It is also necessary to consider measures of a preventive nature that will facilitate the development of a widespread awareness of the intrinsic value of human rights in the hemisphere and of the fact that the violation of these rights is unacceptable and deprives these governments of their very legitimacy.
The above is valid in democratic societies, in which the violations of human rights, if they have occurred, are usually acts of the past. Disseminating information about rights and the obligation of the state to respect and guarantee such rights is an important function of a democratic society.
4. The foregoing considerations have led the Commission to concern itself in a special way with the teaching of human rights and, within the modest resources it has had available, it has organized seminars to disseminate information on the standards and principles regarding the protection of human rights and encouraged the preparation of textbooks on the subject intended for use in primary and secondary schools.
5. The Commission considers that the importance of the topic requires that this effort at promoting the teaching of human rights now be shared by the whole Organization of American States. Without prejudice to the adoption of measures and allocation of resources to implement programs devoted to the teaching of human rights in the hemisphere by the Inter-American Council on Education, Science, and Culture—to which the Commission offers its full cooperation—it would also appear advisable for the supreme organ of the Organization to indicate, at its next session, general criteria that would express the political will of the member states to commit their efforts to promoting such programs of education on the subject of human rights.
6. By virtue of the foregoing, the Commission considers that the General Assembly should urge the governments of the member states to include the teaching of human rights as a class subject in their official elementary and secondary school curricula.
In this regard, the Commission considers that while the peculiarities of each country should be taken into consideration, that teaching should not be limited solely to what the corresponding national legal and constitutional standards provide, but should also include what the corresponding rules of international instruments, both worldwide and regional, provide.
IV. RECOMMENDATIONS
On the basis of the foregoing background information and considerations, the Commission requests the General Assembly of the Organization of American States at its fourteenth regular session to take the following decisions:
1. To reiterate that the practice of forced disappearance of persons in the Americas constitutes a crime against humanity.
2. To adopt as soon as possible, either at this session or during a Specialized Conference to be convoked during 1985, at the latest, the draft inter-American Convention defining Torture as an International Crime.
3. To instruct the competent organs of the OAS to continue considering granting institutional standing to an inter-American authority responsible for assistance to and protection of refugees in the hemisphere.
4. To invite the governments of the member states and the organs and agencies it considers appropriate, including the Commission, to make specific proposals to the fifteenth regular session of the General Assembly on the content of the proposed Additional Protocol to the American Convention on Human Rights in the area of economic, social, and cultural rights, especially as regards the definition of the rights that will be the object of protection and the institutional mechanisms that should be established to achieve adequate protection of them.
5. To urge the member states to include the teaching of human rights as a class subject in their official elementary and secondary school curricula, including those rights as they are defined in the respective national constitutional provisions and in the corresponding international instruments.
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