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OEA/Ser.L/V/II.79.rev.1 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION AREAS
IN WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE OF
THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF
THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON
HUMAN RIGHTS I. CODIFICATION AND
PROGRESSIVE DEVELOPMENT
The Commission is convinced that one of the principal expressions of the
new international law in the American hemisphere has been the body of standards
on the international protection of human rights.
Undoubtedly the most important instrument in this respect is the 1969
American Convention on Human Rights, or Pact of San José, Costa Rica. At present 22 of the 35 member states of the Organization are
parties to that Convention.
It is, therefore, the hope of the Commission that States Parties to the
American Convention on Human Rights will soon include, if not all, then at least
the great majority of the members of our Organization. Therefore, it is again requesting the General Assembly to
recommend its ratification or accession, as the case may be, to those member
states that have not yet done so.
Apart from the American Convention on Human Rights, there are other
instruments in the inter-American system for the protection of human
rights. In 1985, at its fifteenth
regular session in Cartagena, the General Assembly adopted the Convention to
Prevent and Punish Torture. That
instrument had originally been proposed by the Commission back in 1978.
At present it has been signed by 20 States, 8 of which have ratified it.
Another instrument is the Additional Protocol to the American Convention
on Human Rights in the area of economic, social and cultural rights, which the
General Assembly adopted in San Salvador. It
began with a Costa Rican proposal, which the Commission developed into a draft
protocol. Thus far, 14 States have
signed it, but only one, Suriname, has ratified it.
Another Additional Protocol to the American Convention on Human Rights is
the one on the Abolition of the Death Penalty, which was adopted at the last
session of the General Assembly, held in Asunción, Paraguay. This had been an initiative of the Commission and was
proposed by the Government of Uruguay. To
date, only five States have signed it: Ecuador,
Nicaragua, Panama, Uruguay and Venezuela. No
State has ratified it. The
Commission would like to avail itself of this opportunity to call upon all the
States Parties to the Pact of San José to accede to or ratify the Additional
Protocols, as one more step toward fuller protection of the rights contemplated
in the American Convention.
Some mention should also be made of one of the Commission's other
proposals, which is the draft of a human rights instrument to prevent and punish
the crime of forced disappearances. This
draft is being examined by a working group of the Permanent Council of the
Organization and the Commission is confident that its adoption in the near
future will make for better protection of human rights.
II. GROUPS OF ARMED
IRREGULARS AND HUMAN RIGHTS
1.
Background
In some countries of the hemisphere, violence has taken a serious turn
for the worse and, by extension, has taken a toll on the people's rights.
Some of the violence has political connotations, while in other cases it
is the result of increased activity on the part of organizations engaged in
common crime whose illicit activities have
enabled them to arm themselves with everything they need to take on the
State's security forces.
There is nothing new about this brand of indiscriminate violence or
politically motivated violence. In
the past, there have been cases of extreme violence against persons,
institutions and property. Because
of the nature of its functions, the Inter-American Commission has
firsthand knowledge of the situations described here, which is what prompted it
to address the atmosphere of violence in which human rights violations occur. In certain situations, the scale of the conflict is that of
an armed struggle in which a group of irregulars may come to control pieces of
territory. In the course of the
conflict, indiscriminate or selective violence may also be used.
Such violence may affect persons not directly involved in the armed
struggle or who have ceased to be involved in it.
Such situations make for a very complex picture.
Using the experience it has, the Inter-American Commission on Human
Rights must address this matter with special care and particularly in light of
the recommendations recently made to it by the General Assembly of the
Organization of American States.
At its twentieth regular session, the OAS General Assembly adopted
resolution AG/RES. 1043 (XX-0/90), as follows: CONSEQUENCES
OF ACTS OF VIOLENCE PERPETRATED BY IRREGULAR
ARMED GROUPS ON THE ENJOYMENT OF HUMAN RIGHTS
THE GENERAL ASSEMBLY, HAVING SEEN resolution AG/RES. 778 (XV-0/85) "Condemnation of terrorist methods and practices"; and
CONSIDERING:
That the increase in indiscriminate and selective violence perpetrated by
irregular armed groups in some states of the hemisphere demands that the new
situations arising in that context be assessed responsibly, rigorously and
impartially, with a view to monitoring more closely the protection of human
rights in the region;
That such acts are assaults on human life and personal safety, undermine
the well-being of democratic societies, cause serious damage to
infrastructure and economic output, and hinder the full exercise of the civil,
political, as well as economic, social and cultural rights of the peoples of the
Americas;
That it should be emphasized that all obligations relating to the
protection and promotion of human rights and the fundamental freedoms of the
people must be observed at all times,
RESOLVES:
1. To
reaffirm the condemnation of terrorist activities issued in resolution AG/RES.
775 (XV-0/85) by the General Assembly of the Organization of American
States and its commitment to combat such illicit activity with full respect for
the rule of law.
2. To
express its most emphatic repudiation of the crimes perpetrated by irregular
armed groups and its deep concern over the adverse effects of such acts on the
enjoyment of human rights, endangering as they do the functioning and stability
of democratic institutions in the hemisphere.
3. To
recommend to the Inter-American Commission on Human Rights that in
reporting on the status of human rights in the American states, it include
reference to the action of irregular armed groups in such states.
This resolution is one of many statements and proposals made by the
delegates of the member states of the Organization when various topics were
discussed. For example, at the time
of discussion of Article 2 of the Draft Inter-American Convention on
Forced Disappearance of Persons, which defines the phenomenon of disappearance,
the Peruvian Government's proposal was to include the following phrase:
"and the abduction or detention of a person either by persons belonging to
insurgency groups, belligerents or, in general, any armed group that employs
violence."
This line of thought has been echoed in the Working Group on the
Strengthening of the Organization in connection with the system of human rights.
The Report of the Rapporteur for the Topic of Human Rights of the Working
Group on the Strengthening of the OAS (document CP/GT/FOEA/ doc.6/89 rev. 1)
summarizes the views expressed by the delegates on this point and states that
they agreed to study the idea of preparing a special legal regime that covers
human rights violations committed by groups of armed irregulars that engage in
terrorism.
It should be noted here that some member states of the Organization are
not in favor of the idea of associating acts perpetrated by irregular groups
with the concept of human rights. Because
of the possible impact that this situation might have on the
inter-American system for protecting human rights, some observations in
this regard are in order.
2.
The legal framework
It might be useful to begin the examination of this issue with a brief
look back at the origin of the traditional concept of human rights and how it
materialized into international laws, the same laws that instituted
organizations charged with international protection of human rights.
The concept of human rights is often used to refer to acts that adversely
affect the exercise of individual rights. In
a very broad sense, the fundamental rights of a person,
individual rights and human rights would seem to be synonymous; anything
related to the attributes of the person is a right and, by extension,
a human right. This idea is
so sweeping, however, that the element of specificity is lost.
In the case of the standards of international law that govern the
international obligation of States in the matter of human rights, the type of
juridical relationship that the respective rules formalize is a specific one.
Here it should be noted that the individual rights or rights of the
person are those recognized in the constitutions of the States as those
attributes of the person that the State has the duty to protect by reaffirming
them when they are in danger of being violated or by establishing some type of
compensation when the violation has already been committed.
This is the classic notion of the role of the State as an organ charged
with protecting the individual vis-à-vis the actions of other
individuals or groups.
The situations that arose in Europe between the two world wars
dramatically demonstrate the need to develop a system that contemplates those
situations in which the State, whose function is to protect the individual,
becomes his assailant. When it
comes to the State, the individual is defenseless because he lacks the means to
protect himself. This is where the
rights of the individual acquire an added dimension that puts them above the
rights of States and makes the individual a subject under international law. Thus, his individual rights can be protected by the
international community, organized and juridically regulated by means of
treaties. This is the substance of
the legal contract between the individual and the State that is formalized in
the concept of human rights.
This is the underlying principle of the international legal instruments
on human rights. The American
Convention concerns the duties of States vis-à-vis the rights and
freedoms of persons, the full and free exercise of which they must not only
respect but also guarantee. The
entire system for protecting human rights is designed on the basis of the
State's acknowledgement of itself as a party to a fundamental legal contract on
the matter of human rights and it is against the State that complaints alleging
violation of the rights upheld in the Convention are brought.
This legal concept is also the basis of the structure and functions of
the international organizations charged with the protection and promotion of
human rights. It is within this
legal framework that the Inter-American Commission on Human Rights has
been discharging its functions; it has also found there the elements that have
allowed it to address situations of violence when they are the general backdrop
against which violations of human rights occur.
This point is addressed below.
3.
The Inter-American Commission on Human Rights and
acts of violence
The rules and regulations of the Commission enable it to take into
account the atmosphere of violence in which human rights violations may be
occurring, and to address those very situations.
In effect, in its reports on the situation of human rights in El Salvador
(1978), Argentina (1980), Colombia (1981), Guatemala (1981 and 1983), the
Miskito Indians in Nicaragua (1983), and the updates on those reports as
presented in its annual reports, the Inter-American Commission has made
reference to the problem of violence in the country under study and has
described the acts committed by groups of armed irregulars.
One comment that is of particular relevance to the topic under
consideration here is contained in its Annual Report 1988-89.
There, when reporting on the on-site observation conducted in Peru
from May 8 through 12, 1989, the Commission noted the following: The
Special Commission also felt it was imperative to put an end to the activities
of irregular groups; they are escalating and spreading the violence, which is
taking a dire toll in human lives and eroding the country's basic institu-
tions. Neither the professed
struggle to conquer poverty and build a new state nor the need to take justice
into their own hands can in any way justify recourse to selective assassination,
summary execution, the destruction of the productive infrastructure, torture,
the forced disappearance of persons and the use of terrorism as an instrument of
social control.
The Commission can address such violence, and has done so repeatedly,
from two different angles. One is
the need to depict the general setting of the human rights situation in a given
country. The other angle is to
consider those situations when analyzing the causes invoked as grounds for
suspending the exercise of certain rights, in accordance with the provisions of
the American Convention on Human Rights. Such
situations can, therefore, be examined in the context of the rules and
regulations that govern the business of the Commission, and it has used that
approach. To expand the concept of
human rights or the functions of the Inter-American Commission by adding
new elements would mean that particular care would have to be taken when
defining the situations and the protagonists that one wishes to consider.
4.
Irregular armed groups
General Assembly resolution AG/RES. 1043, cited earlier, is the first
time the General Assembly has coupled the activities of groups of armed
irregulars with the notion of human rights.
Both in the resolution and in the Peruvian proposal, the notion of
"irregular armed groups" is a very broad concept.
In this specific case, the concept is broad enough to encompass
situations involving various types of political violence, as well as the
activities of armed groups organized for purposes of common crime.
By way of example, one might consider the dimensions of the phenomenon of
drug traffickers in the hemisphere--in countries where drugs are
produced, countries where they are distributed, and countries in which they are
consumed--and the various individual rights adversely affected by
the activities of such group. This
one example points up the need to specify the scope of the terms being used. One should also consider the widespread phenomenon of urban
violence, both for criminal purposes and because of similar social
maladjustments in the case of adolescents and the young.
Real armed groups participate in this violence.
These examples show that if the concept used is too sweeping, the
Inter-American Commission on Human Rights could become involved in any act
of violence perpetrated by an armed group.
There is no doubt that this would have an adverse effect on the American
system for protecting human rights and would do nothing to enhance its
operation.
In the case of General Assembly resolution AG/RES. 1043, however, the
concept of "irregular armed groups" would seem to refer to the actions
of these groups amid some internal armed conflict, in which violence is used to
alter a given political order. This
type of phenomenon is regulated under Article 3 of the Geneva Conventions.
That article is applied in the case of armed conflicts not of an
international nature and is intended to formalize the commitment of the States
parties and the groups involved in the conflict to accord humane treatment to
all persons who are not taking active part in the hostilities, including members
of the armed forces who have laid down their arms or are not engaged in combat.
This article prohibits violence to the life and person of the people, the
taking of hostages, outrages upon the personal dignity and the passing of
sentences by anything other than the regularly constituted courts.
It should also be borne in mind that the article in question stipulates
that an impartial humanitarian body such as the International Committee of the
Red Cross, may offer its services to the Parties to the conflict.
Because the rights protected under Article 3 of the Geneva Conventions
are the same as some of those included in the human rights instruments that the
Inter-American Commission on Human Rights applies, one could argue that
the Commission might become involved in investigating and clarifying events that
occurred amid an armed conflict that was not of an international nature.
Were such a decision to be made, then specific rules to that effect would
have to be drafted. In doing so,
consideration would have to be given to the political implications that such
functions might have for the parties in conflict.
Another situation in which the concept of "irregular armed
groups" is used is when they take actions calculated to alter a social
order that they perceive as being antidemocratic and unjust and that is
perpetuated through the use of some form of violence.
The recent history of the hemisphere has seen situations of this type,
where "subversive" or "insurgent" groups have later gone on
to become the government, or have helped create the conditions for a change of
government.
The expression "irregular armed groups" would therefore have to
be carefully defined in order to establish the subjects that the Commission is to target. The type of situations in which the activities of such groups
would require the Commission's consideration would also have to be determined in
order to give it a precise legal frame of reference by which to operate.
This becomes even more necessary when one considers that the concept of
irregular armed groups has often been associated with the concept of terrorism,
a point that will be addressed below.
5.
Terrorism
Resolution AG/RES. 1043 alludes to a certain type of violence perpetrated
by irregular groups ("indiscriminate and selective violence"). Here
it would seem to be referring to the matter of terrorism, judging by the
references made to resolution AG/RES. 775 (XV-0/85) "Condemnation of
terrorist methods and practices." Resolution
AG/RES. 775 does not establish any link between the phenomenon of terrorism and
the concept of human rights. Nevertheless,
because the issue of terrorism has been raised and has prompted various measures
within the Organization, it merits careful consideration.
The problem of acts of terrorist violence and their consequences for the
exercise of human rights is not a matter of indifference to the
Inter-American Commission on Human Rights, any more than it is for the
Organization of American States or the United Nations.
The history of the Commission's own experience with this issue is a good
illustration of the kinds of problems and repercussions that examining the links
between terrorism and human rights can mean, especially when it comes to the
inter-American system for promoting and protecting human rights.
Thus, on April 23, 1970, the Inter-American Commission on Human
Rights, deeply disturbed by the recent acts of terrorist violence in the
hemisphere and elsewhere in the world, adopted a resolution wherein it condemned
"acts of political terrorism and urban or rural guerrilla terrorism, as
they cause serious violations of the rights to life, personal security and
physical freedom, freedom of thought, opinion and expression, and the right to
protection, upheld in the American Declaration and other international
instruments." It also declared
"that the political or ideological objectives cited as the reason for such
acts do not alter the fact that they are serious violations of the human rights
and fundamental freedoms, nor does it exonerate the authors of such acts of
their responsibility for the commission of those violations."
Two phenomena induced the Inter-American Commission on Human Rights
to review this early position. The
first was the volume of work on the issue of terrorism that other organs of the
Organization had produced.[1] In the slow course of this
process--which is still underway--, no agreement was
reached on various aspects related to terrorism, such as the matter of asylum,
extradition, the definition of terrorist acts and, in particular, the underlying
causes of terrorism. The lack of
agreement, coupled with the fact that the United Nations was also seized of the
matter, led to the present state of affairs, in which the last official
reference was in the 1985 General Assembly resolution on "Condemnation of
terrorist methods and practices." There
the General Assembly resolved "To express its unequivocal support for the
consideration given to the matter of international terrorism by the United
Nations General Assembly at its fortieth session."
It is interesting to note that the issue of human rights was not linked
to the question of human rights either in this resolution or in any other
document produced by the various organs of the Organization since 1970.
The outcome was an Opinion of the Inter-American Juridical
Committee and the draft Convention on Terrorism and Kidnapping of Persons for
Purposes of Extortion, which served as a basis for discussions in the General
Assembly and led to adoption of the Convention to Prevent and Punish the Acts of
Terrorism Taking the Form of Crimes against Persons and Related Extorsion that
are of International Significance, approved in Washington on February 2, 1971,
and ratified by nine member states to date.
The General Assembly also instructed the Permanent Council to study
issues of collaboration to prevent and punish acts of terrorism and the aspects
that had not yet been covered by the Washington Convention.
The Permanent Council referred this mandate to its General Committee,
which formed a Working Group in 1972; this Working Group met three times down to
February 1973, and then met again in 1976.
In 1977 the General Assembly renewed its mandate to the Permanent Council
in this matter, and in 1978 the Working Group presented a report on possible
international action against the problem of terrorism, recommending that the
General Assembly itself determine the basic guidelines to be followed.
In 1978 the Assembly again instructed the Permanent Council to continue
its studies toward the preparation, in cooperation with the Inter-American
Juridical Committee, of draft conventions on the aspects not covered in the
Washington Convention of 1971 and on the taking of hostages, an aspect that had
also been under consideration by a United Nations ad hoc Working Group since
1976, which led to the preparation of an Interna- tional Convention
against the Taking of Hostages, approved by the General Assembly in 1979.
On that occasion the General Assembly also recommended to the Permanent
Council that, "concurrently with the work mentioned above, if undertake
studies and research to establish the underlying causes of international
terrorism [Resolution AG/RES. 366 (VIII-0/78)].
The work subsequently reached an impasse that proved insuperable, and the
last action taken was a report of the Permanent Council's Committee on Juridical
and Political Affairs of November 28, 1983, suggesting that the Council consult
the member states on the advisability of pursuing the work any further.
The other phenomenon that caused the Inter-American Commission on
Human Rights to define the legal framework of its activity in connection with
the issue of terrorism was the frequent use of terrorism by governments, which
the Commission had established . Massive
and systematic human rights violations were being committed.
Thus, for example, governments such as those that resulted from the coup
d'etat in Chile on September 11, 1973, or in Argentina on March 26, 1976, or the
government headed by General Anastacio Somoza in Nicaragua--to
mention but a few--argued that their actions were in response to the
need to deal with terrorist attacks. They
further emphasized that the Commission's position should be to condemn
"terrorist" acts by groups of armed irregulars on grounds that they
violated their victims' human rights.
The most specific articulation of those concerns appears in the document
"Observations and Criticisms of the Government of Argentina on the Report
of the Inter-American Commission on Human Rights on the Situation of Human
Rights in Argentina" (doc. OEA/Ser.P AG/CP/doc. 265/80, April 29, 1980): If
it has been admitted that the human rights of the victims of terrorism have been
violated, the IACHR is competent to study the matter or, in any event, to
concern itself with the issue, since its mission is "to promote respect for
human rights." If that premise is not accepted, there is obviously an
irreconcilable difference in concepts and basic approaches that will inevitably
have a significant impact on the value attached to the work of the IACHR.
In circumstances such as those in which the preceding paragraph was
drafted, the Commission has had to take into account that the issue of violence
and terrorism has from time to time been used, either blatantly or indirectly,
to justify human rights violations. In
effect, when the Commission has addressed violent situations such as those
mentioned under point 3 of this document, it has presented information that can explain
acts of government agents that lead to human rights violations.
However, such generalized violence, even terrorist violence, cannot ever
be used to justify the violations that occur.
This is one aspect that must be weighed carefully, since the Commission
has often heard the argument that human rights violations are inevitable because
they are the consequence of the "war" created by armed groups, who are
generally portrayed as terrorists. Thus,
human rights violations are being justified as a necessary byproduct of an armed
conflict that the authorities and security forces do not admit to having
provoked. In the Commission's
judgment, this is an invalid argument; consequently, it has repeatedly asserted
that unqualified respect for human rights must be a fundamental part of any
anti-subversive strategies when such strategies have to be implemented.
The association of the topic of terrorism with that of human rights poses
some major practical problems as well. Investigation
of "terrorist acts" first presupposes defining such acts in order to
pinpoint what it is that the Commission is expected to do.
As explained earlier, that definition has not yet been devised.
Without that definition, the Commission would have to approach the issue
on the basis of the information that the governments provide in connection with
those terrorist acts. Assessing
that information would require that the Commission conduct some type of
investigation in that regard and, in the process, hear the side of the
organization to which the terrorist act is imputed.
This concrete situation poses two problems: first, the Commission would be performing functions that are
the purview of the State, such as investigating the facts and identifying those
responsible. This raises the
fundamental issue of State sovereignty, as there are many who believe that the
investigation of terrorist acts and their prevention and punishment are the
exclusive authority of the State, that such authority cannot be delegated and
that international organizations have no role in them.
The corollary is that the only place where an international dimension to
the issue of terrorism is suitable is that of cooperation between States to
apprehend the authors of such acts or to prevent their reoccurrence.
The Commission is of the opinion that as matters stand in the
Organization of American States and the United Nations on the issue of
terrorism, it cannot preempt the State in its duty to investigate acts of
violence or terrorism, to identify those responsible, to bring them to trial,
with due process of law, and to apply the penalties that the law requires.
The second problem posed by the Commission's eventual involvement in
these procedures is the repercussions that the activities of an
intergovernmental organ can have on the international standing of a group that
is a party to an internal armed conflict. In
effect, the Inter-American Commission's experience shows that many of the
acts classified as terrorist acts occur within the context of armed domestic
strife. One of the parties to the
dispute may be armed groups that control pieces of territory, that could qualify
as belligerents and, eventually, be recognized as subjects of international law.
All these considerations must be carefully weighed when drafting the
standards required if one wishes to move further in the direction of linking
human rights and terrorism.
As the work being done in connection with the issue of terrorism now
stands, there is no frame of reference that would allow the inter-American
system for the protection of human rights to help remedy the situations posed.
After many years of study in various fora, that frame of reference is
still missing because of its legal implications and the practical problems it
poses.
Summarizing, the Inter-American Commission on Human Rights believes
that the concern to extend the American system for the protection of human
rights to include situations not yet included therein is a positive one and
offers an important area in which the organs of the Organization may
collaborate. However, it must
underscore the fact that the effort must be based on the experience gained thus
far in various areas, strengthening action within the existing legal framework
that exists: the American
Declaration of the Rights and Duties of Man, the American Convention on Human
Rights, the American Covention to Prevent and Punish Torture, the Additional
Protocol to the Convention in the Area of Economic, Social and Cultural Rights.
One must also bear in mind the way the Commission has been examining the
situations of violence that may be affecting certain states, situations in which
human rights violations are occurring. In
other respects, such as the one that concerns the matter of terrorism, it is up
to the pertinent organs to work toward defining norms on the subject matter so
as to then examine whether the issue of terrorism should be linked to the issue
of the observance of human rights. As
for situations involving domestic armed conflict, it is the responsibility of
the States to establish the norms and conditions under which the Commission,
based on the international regulations that govern it, may help to correct any
problems that arise involving individual rights.
The Inter-American Commission on Human Rights is ready to continue
to cooperate with the organs and member states of the Organization on these and
other topics, with a view to achieving effective observance of human rights in
the hemisphere.
III. HUMAN RIGHTS, POLITICAL
RIGHTS AND REPRESENTATIVE DEMOCRACY
IN THE INTER-AMERICAN SYSTEM
Human rights, political rights and representative democracy are concepts
whose interrelationship has been repeatedly reasserted by the
inter-American community. There
have been numerous declarations and international commitments made by the
American states. The
Inter-American Commission on Human Rights believed this was a fitting time
to summarize the most important milestones in that regard, tying in those
advances with the human rights instruments developed by the United Nations
system and the Organization of American States and describing how the Commission
has be dealing with specific situations that concern this matter.
1.
Representative democracy and human rights in
the inter-American system
Representative democracy--one of whose central elements is
the popular election of those who exercise political power--is the
form of State organization explicitly espoused by the member states of the
Organization of American States. Unlike
the United Nations, the American regional organization has included a specific
provision in its Charter, Article 3.d., whereby: The
solidarity of the American States and the high aims which are sought through it
require the political organization of those States on the basis of the effective
exercise of representative democracy.
That article is a more explicit articulation of what the representatives
state in the Preamble to the Charter: Confident
that the true significance of American solidarity and good neighborliness can
only mean the consolidation on this continent, within the framework of
democratic institutions, of a system of individual liberty and social justice
based on respect for the essential rights of man.
This text is of particular significance in that it associates the
democratic system with individual freedoms and respect for human rights, an idea
that had already been embodied in the preamble to the 1947 Inter-American
Treaty of Reciprocal Assistance, where it states: That
the American regional community affirms as a manifest truth that juridical
organization is a necessary prerequisite of security and peace, and that peace
is founded on justice and moral order and, consequently, on the international
recognition and protection of human rights and freedoms, on the indis-
pensable well-being of the people, and on the effectiveness of democracy
for the international realization of justice and security.
With the amendments introduced in the Charter of the Organization through
the Protocol of Cartagena de Indias, Article 2 provides that one of its
essential purposes is "To promote and consolidate representative democracy,
with due respect for the principle of nonintervention" (Article 2.b.).
The reference to the principle of nonintervention calls for a specific
observation in the case of an organ charged with protecting human rights, such
as the Inter-American Commission.
The Commission has already stated that the principle of noninterven-
tion is a rule of conduct to regulate the actions of States or groups of States,
as provided in Article 18 of the Charter of the Organization. The history of all the rules and regulations developed within
the Inter-American System (Seventh International Conference of American
States, Montevideo, 1933, and the Inter-American Conference for the
Consolidation of Peace, Buenos Aires, 1936, the Additional Protocol relative to
Nonintervention) adopt that position. In
its Draft Instrument on cases of violation of the principle of nonintervention
(1972), the Inter-American Juridical Committee stated that when drafting
it, one of the basic criteria it used was that "only States can be
potential subjects of intervention."
In 1972, at its second regular session, the General Assembly of the
Organization of American States adopted a resolution titled "Strengthening of
the principles of nonintervention and self-determination of peoples and
measures to guarantee their observance."
There, the idea that only States are subjects of intervention is
reasserted. One of the paragraphs
in the preamble of that resolution is worth noting: All
States shall respect the right of self-determination and independence of
peoples and nations, to be freely exercised without any foreign pressure, and
with absolute respect for human rights and fundamental freedoms.
The principle of nonintervention, therefore, is tied in with the right of
all peoples to self-determination and independence. When put into practice, this principle must properly parallel
human rights and fundamental freedoms. This
important interrelationship of principles of international law is embodied in
Article 16 of the Charter of the Organization, which reads as follows: Each
State has the right to develop its cultural, political, and economic life freely
and naturally. In this free development, the State shall respect the rights
of the individual and the principles of universal morality.
According to this provision of the Charter, a State's right to develop
its domestic life freely has a counterpart in the form of its obligation to
respect the rights of the individual. In
the inter-American juridical system, those rights are embodied in the
American Convention on Human Rights. A
proper interpretation of the principle of nonintervention, therefore, is the
protection of the right of States to self-determination, provided that the
State conducts itself in such a way that the rights of the individual are
respected.
The link between representative democracy and human rights was addressed
by the Fourth Meeting of Consultation of Ministers of Foreign Affairs
--Washington, D.C., March 26 through April 7, 1951.
Resolution VII, titled "Strengthening and Effective Exercise of
Democracy," states that the solidarity of the American republics requires
the "effective exercise of representative democracy, social justice and
respect for and observance of the rights and duties of man."
The relationship between representative democracy and the observance of
human rights is reasserted in Resolution XXVII of the Tenth Inter-American
Conference --Caracas, March 1 through 28, 11954-- which
declares that full observance of the fundamental human rights can only be
realized within a system of representative democracy.
Later, the postulate of the relationship between representative democracy
and human rights was further refined in the Declaration of Santiago, adopted in
1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs.
It was at that meeting that the Inter-American Commission on Human
Rights was created. The Declaration
of Santiago enunciates certain "principles and attributes of the democratic
system", stating that:
1. The principle of the rule
of law should be assured by the separation of powers, and by the control of the
legality of governmental acts by competent organs of the state.
2. The governments of the
American republics should be the result of free elections.
3. Perpetuation in power, or
the exercise of power without a fixed term and with the manifest intent of
perpetuation, is incompatible with the effective exercise of democracy.
4. The governments of the
American states should maintain a system of freedom for the individual and of
social justice based on respect for fundamental human rights.
5. The human rights
incorporated into the legislation of the American states should be protected by
effective judicial procedures.
6. The systematic use of
political prescription is contrary to American democratic order.
7. Freedom of the press,
radio, and television, and, in general, freedom of information and expression,
are essential conditions for the existence of a democratic regime.
8. The American states, in
order to strengthen democratic institutions, should cooperate among themselves
within the limits of their resources and the framework of their laws so as to
strengthen and develop their economic structure, and achieve just and humane
living conditions for their peoples.
For its part, the General Assembly of the Organization has on numerous
occasions articulated the relationship between representative democracy and
human rights, emphasizing the need for political rights to be exercised so as to
elect government authorities. And
so, it has recommended "...to the member states that have not yet done so
that they reestablish or perfect the democratic system of government, in which
the exercise of power derives from the legitimate and free expression of the
will of the people, in accordance with the particular characteristics and
circumstances of each country" [Resolutions AG/RES. 510 (X-0/80);
AG/RES. 543 (XI-0/81); AG/RES. 618 (XII-0/82); AG/RES. 666
(XIII-0/83), and AG/RES. 742 (XIV-0/84)].
In the preamble to resolution AG/RES. 618 (XII-0/82), the General
Assembly also states that "a democratic structure is an essential factor in
establishing a political society in which human values can be fully
developed."
The General Assembly of the Organization of American States addressed a
specific case in resolution AG/RES. 443 (IX-0/79), adopted at its ninth
regular session, wherein it resolved: 5.
To urge the Government of Chile to step up adoption and implementation of
the measures necessary effectively to preserve and ensure the full exercise of
human rights in Chile, especially regarding clarification of the situation of
those detained persons who have disappeared, return of exiles to their country,
lifting of states of emergency, and prompt reinstatement of the right to vote.
Another pertinent resolution adopted by the General Assembly was AG/RES.
837 (XVI-0/86). The preamble
states the following: The
Inter-American Commission on Human Rights, in its annual report for the
period 1985-86 presented to this regular session of the General Assembly
for consideration, recommended "that it reaffirm the urgent need for the
governments that have not yet reestablished representative democracy as their
system of government to put in place the relevant institutional mechanisms for
restoring that system in as short a period of time as possible by means of free,
secret and informed elections, since democracy is the best guarantee for the
observance of human rights and the basis of solidarity among the states of the
hemisphere."
In that resolution the General Assembly went on to resolve the following: To
reaffirm the inalienable right of all the peoples of the Americas freely to
determine their political, economic and social system without outside
interference, through a genuine democratic process and within a framework of
social justice in which all sectors of the population will enjoy the guarantees
necessary to participate freely and effectively through the exercise of
universal suffrage.
The last of the General Assembly resolutions that should be cited is
AG/RES. 890 (XVII-0/87), wherein it decides: To
reiterate to those governments that have not yet reinstated the representative
democratic form of government that it is urgently necessary to implement the
pertinent institutional machinery to restore such a system in the shortest
possible time, through free and open elections held by secret ballot, since
democracy is the best guarantee of the full exercise of human rights and is the
firm foundation of the solidarity among the states of the hemisphere.
As can been seen, in the inter-American sphere there is a close
correlation between representative democracy as a form of State organization and
the exercise of political rights. That
relationship will be examined, based on the international instruments wherein
those rights are spelled out.
2.
Representative democracy and political rights
The universal and inter-American instruments on human rights need
to be mentioned. Among the former
is the Universal Declaration of Human Rights, Article 21 of which states: 1.
Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives. 2.
Everyone has the right of equal access to public service in his country. 3.
The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.
Article 25 of the International Covenant on Civil and Political Rights
provides that citizens shall enjoy the following rights and opportunities: Every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To
take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To
vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
(c) To
have access, on general terms of equality, to public service in his country.
At the inter-American level is the American Declaration of the
Rights and Duties of Man, Article XX of which reads as follows: Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.
This postulate is elaborated upon in
Article 23 of the American Convention on Human Rights, which provides
that:
1. Every citizen shall enjoy the
following rights and opportunities:
a. to take part in the conduct of
public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in
genuine periodic elections, which shall be by universal and equal suffrage and
by secret ballot that guarantees the free expression of the will of the voters;
c. to have access, under general
conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.
An important point here is that Article 27 of the American Convention,
which concerns the suspension of guarantees "In time of way, public danger,
or other emergency that threatens the independence or security of a State
Party...," does not authorize suspension of the exercise of political
rights, as stipulated in its subparagraph 2.
The Commission has noted that it is no coincidence that the laws drafted
in this hemisphere have emphasized the existence of a direct relationship
between the exercise of political rights so defined and the concept of democracy
as a form of State organization, which in turn presupposes the observance of
other fundamental human rights. In
effect, it is the Commission's view that the concept of representative democracy
is founded upon the principle that it is the people who have political
sovereignty; exercising that sovereignty, they elect their representatives
--in indirect democracies--to exercise political power. These representatives, moreover, are elected by the citizens
to apply certain policy measures, which in turn means that the nature of the
policies to be applied has been widely debated--freedom of
thought--among organized political groups--freedom of
association--that have had an opportunity to voice their opinions
and assemble publicly--right of assembly--.
Moreover, the observance of these rights and freedoms calls for a legal
and institutional order wherein the law take precedence over the will of the
governing and where certain institutions exercise control over others so as to
preserve the integrity of the expression of the will of the
people--a constitutional state or a state in which the rule of law
prevails.
On numerous occasions the Commission has made reference to several
aspects associated with the exercise of political rights in a representative
democracy and their relationship to the other fundamental rights of the
individual. For the sake of
brevity, only those texts that best illustrate this point will be cited.
And so, the Inter-American Commission has said the following in
this regard:
The right to take part in the government and participate in honest,
periodic, free elections by secret ballot is of fundamental importance for
safeguarding the human rights dealt with in the preceding chapters. The reason for this lies in the fact that, as historical
experience shown, governments derived from the will of the people, expressed in
free elections, are those that provide the soundest guaranty that the basic
human rights will be observed and protected.
(Report on the Situation of Human Rights in El Salvador (OEA/Ser.L.V/II.45,
doct. 23 rev. 2, November 17, 1978, p. 140)). The right to political participation leaves room for a wide variety of forms of government; there are many constitutional alternatives as regards the degree of centralization of the powers of the state or the election and attributes of the organs responsible for the exercise of those powers. However, a democratic framework is an essential element for establishment of a political society where human values can be fully realized.
The right to political participation makes possible the right to organize
parties and political associations, which through open discussion and
ideological struggle, can improve the social level and economic circumstances of
the masses and prevent a monopoly on power by any one group or individual.
At the same time it can be said that democracy is a unifying link among
the nations of this hemisphere. (Annual
Report of the IACHR, 1979-80, p.151).
The American States have reaffirmed in the Charter of the Organization of
American States that one of the guiding principles upon which their solidarity
is based requires that the political organization of those States be based on
the effective exercise of representative democracy. Other international instruments on human rights, such as the
Pact of San José of Costa Rica, have recognized the right of every citizen to
take part in the conduct of public affairs, to vote and to be elected in genuine
periodic elections, which shall be by universal equal suffrage and by secret
ballot that guarantees the free expresion of the will of the voters.
At the same time, the General Assembly of the OAS at its tenth regular
session, reiterated to its member states that have not yet done so to
reestablish or perfect the democratic system of government, in which the
exercise of power derives from the legitimate and free expression of the will of
the people, in accordance with the particular characteristics and circumstances
of each country.
For its part, the Commission has maintained that within the alternative
forms of government that constitutional law recognizes, the framework of a
democratic regime should be the fundamental structure for the full exercise of
human rights. In this context, governments have, in the face of political rights and the right to political participation, the obligation to permit and guarantee: the organization of all political parties and other associations, unless they are constituted to violate human rights; open debate of the principal themes of socio-economic development; the celebration of general and free elections with all the necessary guarantees so that the results represent the popular will.
As demonstrated by historical experience, the denial of political rights
or the alteration of the popular will may lead to a situation of violence.
(Annual Report of the IACHR, 1980-81, pp. 122-123).
The analysis of the human rights situation in the States to which the
Commission has made reference in the foregoing chapter, as well as in others
where the human rights situation has been considered by the Commission in recent
years, enables the Commission to affirm that only by means of the effective
exercise of representative democracy can the observance of human rights be fully
guaranteed. It is not a question merely, of pointing out the organic relation that exists between representative democracy and human rights; which is manifest in the Charter of the OAS and other instruments of the inter-American system. The Commission's factual experience has been that serious human rights violations that have occurred or that are occurring in some countries of the Americas are primarily the result of the lack of political participation on the part of the citizenry, which is denied by the authorities in power. The resistence of these authorities as regards taking the action necessary to reestablish representative democracy has increased the tyranny, on the one hand, and led to serious social strife, on the other. The result has been that both the government and the more extreme opposition sectors have shown a preference for the use of violence as the sole means of resolving conflicts in the face of a lack of peaceful and rational options.
This experience confirms, therefore, the authentic social peace and
respect for human rights can only be found in a democratic system.
It is the only system that allows for the harmonious interaction of
different political tendencies and within which, by means of the inter
institutional equilibrium it establishes, the necessary controls can be invoked
to correct errors or abuses by the authorities.
(Annual Report of the IACHR, 1985-1986, p. 191).
Finally, in its 1987 Report on the Situation of Human Rights in Paraguay,
after analyzing the most relevant legal texts produced in the hemisphere, the
Commission put ... ... the exercise of political rights in the larger context of the system of representative democracy. The hemisphere's legal tradition and the Commission's experience lead to the belief that the exercise of such rights implies participation by the population in the conduct of public affairs, either directly or through representatives elected in periodic and genuine elections featuring universal suffrage and secret ballot, to ensure the free expression of the elector's will. The voters must be given access, on general conditions of equality, to public functions.
Exercise of political rights is, in turn, an essential factor in the
democratic system of government, which is also characterized by the presence of
an institutional system of checks on the exercise of power, the existence of
ample freedom of expression, association and meeting; and acceptance of a
pluralism that would prevent the use of political proscription as an instrument
of power.
This hemispheric vision of the exercise of political rights within the
context of a democratic system of government is completed by the requisite
development and promotion of economic, social and cultural rights. Without them, the exercise of political rights is severely
limited and the very permanence of the democratic regime is seriously
threatened.
In short, for the Inter-American Commission on Human Rights the exercise of political rights is an essential ingredient
of a representative democracy and presupposes the observance of other human
rights as well; the protection of those civil and political rights in a
representative democracy also implies the existence of some institutional
control over the actions of the powers of the State; it also presupposes the
supremacy of the law. It
might be well to determine the scope of the definition of the political rights
contained in Article 23 of the
American Convention on Human Rights, drawing upon earlier statements made by the
Inter-American Commission on Human Rights.
3.
Political rights and electoral processes
The Commission has also said that since the will of the people is the
basis for the authority of government, as provided in the Universal Declaration,
it follows that the authorities of the State should be appointed by means of
elections. The Universal
Declaration, the American Declaration, the Universal Covenant of Civil and
Political Rights and the American Convention on Human Rights all agree that
elections should have specific
properties: they should be
authentic or genuine (honest in the case of the American Declaration), periodic,
by universal suffrage, and conducted in such a way that they preserve the free
expression of the will of the electorate. What
follows is an analysis of each of these properties, accompanied by statements
made by the Inter-American Commission on Human Rights in reference to
specific situations.
a.
Authenticity of the elections
The act of electing those representatives must be "genuine" in
the sense used in the American Convention.
This means that the will of the voters must be reflected in the outcome
of the elections. Put in negative
terms, it means that there must be no interference that tampers with the will of
the citizenry.
The various statements that the Inter-American Commission on Human
Rights has made in this regard--as presented below--show
that there are two different components to what constitutes genuine elections: on the one hand are the general conditions in which the
electoral process unfolds; on the other are those matters related to the legal
and institutional system that sets up the elections and conduct the balloting,
in other words, anything related, either directly or indirectly, to casting the
ballot.
As for the general conditions in which the electoral process
unfolds, from the concrete situations that the Commission has examined the
conclusion is that the conditions must be such that there are several political
groups participating in the election, all on an equal footing; in other words,
all candidates must be able to conduct their campaigns under the same basic
conditions. This also means that
there must be no direct coercion nor undue advantages in favor of one candidate
in the election. Some of what the
Inter-American Commission has written in this connection follows.
In its Annual Report 1979-1980, when analyzing the situation of
political rights in Uruguay, the Commission cited the complaints brought by the
opposition concerning the conditions under which the national plebiscite would
be called, such as "the nonexistence of an adequate climate of political
freedom, the absence of a truly free press, the lack of guarantees, etc."
The Commission noted that the conditions lacking at that time were
"essential to carry out any act of political significance." (p. 135).
In the Annual Report 1982-1983, the Commission stated that the
municipal elections held in Haiti in 1983 "were held in an atmosphere of
insecurity and fear due to the existence of a virtual state of siege, and the
lack of individual guarantees...while the main opposition leaders were either
imprisoned or in exile." (p.
27). In that same report, the
Commission reported the approval of the law on political parties in Nicaragua,
on August 17, 1983, noting that it
should be supplemented by an election law "setting forth the conditions and
circumstances for holding free, secret and informed elections within a short
period, open to all Nicaraguan political sectors." (p. 27).
The Annual Report 1982-1983 also made reference to the elections in
Paraguay. There, the Commission
stated that the state of siege in effect throughout the election campaign,
coupled with the existence of repressive laws,
"caused the entire electoral process to be carried out in an atmosphere of
restriction on public freedoms, fear and insecurity, while the leaders of the
opposition... were persecuted and imprisoned." (p. 28).
In its Annual Report 1983-1984, the Commission examined the general
conditions in which the election processes were being conducted, noting in the
case of Nicaragua that: ... the Commission has been able to verify that during the current electoral process, the Sandinista National Liberation Front has intensively used all of the resources made available to it by its holding of state power, which places it in an advantageous position with respect to other contenders. In this regard. In this regard, the denounced harassment of political and union leaders is unacceptable. Furthermore, the IACHR considers that some candidates have been excluded, which could have been avoided if there had been greater flexibility, both on the part of the candidates and the Government. (p. 119).
In its 1985 Report on the Situation of Human
Rights in Chile the Inter-American Commission leveled various
criticisms at the way the 1980 constitutional plebiscite was conducted and then
stated that: The Commission is not in a position to refer to the specific irregularities in the plebiscite that were reported. However, that does not preclude it from forming a judgment on the circumstances prior to it, and considering that the lack of electoral rolls, the existence of the state of emergency, the inactivity of political parties, the practical disadvantages of opposition sectors in access to the information media, and the absence of viable options to the rejection of the proposal of the Government, are all elements that seriously affect the credibility of that procedure.
In the conclusions to the chapter on the exercise of political rights in
the aforementioned Report on Chile, the Inter-American Commission said
that in both the 1978 referendum and the 1980 plebiscite, there were: ... restrictions arising from the existence of states of constitutional emergency, which have had a negative impact on the exercise of other human rights associated with the exercise of political rights such as the right to freedom of expression and opinion, the right of association, the right of assembly, and the right to personal freedom. The Commission has also been able to observe that, when those polls were held, political parties were proscribed or dissolved and that a significant group of Chileans was impeded from returning to the country. The Commission has also been able to observe that when those polls were held, the Government used all the resources at its disposal and put the opposition in a clearly disadvantageous position. In the opinion of the Commission, these serious restrictions violate the principle of pluralism, which is characteristic of a regime of representative democracy; they also affect the freedom and the authenticity that are fundamental characteristics of any poll in which the right to vote is exercised. All these elements cast well-founded doubts on the credibility of the two procedures. (pp. 282-283).
In its Annual Report 1986-1987, again on the subject of Chile and
the information examined in its 1985 Report, the Commission had the following to
say:
Also in light of previous experience and in accordance with human rights
norms, the Commission must point out that the exercise of the right to vote must
be included in a context favoring the authenticity of elections in which the
free expression of the will of the voters is ensured, as Article 23 of the
American Convention on Human Rights states. The Commission therefore hopes that this important period that is beginning will help to establish an atmosphere that will encourage citizens to make these important decisions. In this regard, it would be very useful for those taking part in the political process to avoid at all costs the use of violence and proscription, such as has been repeatedly requested by important sectors of Chilean society. In the Commission's view, it is essential to break the vicious circle generated by the proscription and violence that threatens to distort the Chilean political scene.
In the Commission's view also, it is of basic importance that in the
period before the scheduled election, the various political groups be given
every guarantee and means to have their views expressed and accurately
transmitted to the voters. Accordingly,
the Commission regards as positive the steps taken by the Government to allow
important opposition leaders to take part again in the country's political life
after their long exile. (p. 220).
In its 1987 Report on the Situation of Human Rights in Paraguay, the
Inter-American Commission on Human Rights pointed out the problems with
the conditions under which the electoral processes were conducted. It must also be remembered that elections have been held under the current state of siege, which is lifted for 24 hours only, on the day of the elections. The many restrictions on the action of political opponents resulting from this situation have also been adduced to justify abstention from voting. Such restrictions include the arrest and harassment of political opponents and the ban on public meetings and party meetings, which are prohibited during the state of siege. Those provisions have not been applied, however, in the case of acts of the official party.
In addition to those restrictions, mass communications media are
controlled directly or indirectly by party members or persons close to the
President of the Republic, as discussed in Chapter V of this report.
Even simple political information about the activities of opposition
parties sufficed for numerous repressive measures to be taken against the ABC
Color newspaper and Radio Ñandutí. (p.
98).
In the case of Chile, in its Annual Report 1987-1988, the
Inter-American Commission expressed the view that a mature and rational
exercise of the right to vote on the occasion of the 1988 plebiscite required
that certain conditions be in place well before the actual voting took place. Among those conditions were the following:
the state of emergency would have to be lifted; there would have to be a
sufficient number of registered voters; the various political positions would
have to have equal access to the media and no pressure could be exercised on
voters.
After establishing that the state of emergency had been lifted and after
determining how many people had registered to vote, the Commission addressed the
issue of the media, as follows:
It may be inferred from the foregoing that during the period covered by
the present Annual Report, access to the media in connection with the campaign
for the plebiscite was njoyed in disproportionate measure by the Government,
which has used the resources available to it to promote messages and images
favorable to its position in the coming consultation of the electorate.
To this must be added the many legal and de facto newspapermen and
political leaders. It must also be
mentioned that the authorization given for the carrying of political programs
represents an advance that does not, however, compensate for the unequal access
to the media deriving from the stated circumstances.
(p. 292).
As for the pressures on the Chilean electorate during the 1988
plebiscite, the Commission notes in that Annual Report "a broad range of
resources employed by the Government, which have the effect of steering the
reactions of the citizenry in a direction favorable to its policies.
Some of these resources are legal provisions and others are the results
of practices engaged in thanks to the lack of a rein on the actions of
government." (p. 292).
The Commission cited three different phenomena in this regard:
the campaign of intimidation resulting from the official statements made
about what would happen if the opposition won; the broad functions performed by
the mayors, who were used to intimidate the opposition, and the threats and
measures against opposition leaders by unidentified groups that had occasionally
been linked to the security forces (pp. 292-293).
The other side of what constitutes genuine elections has to do with the
organization of the electoral process and the conduct of the balloting.
Here again the Commission has made a number of statements in reference to
specific cases examined in its annual or special reports.
What follows are excerpts that can be used to extract the crucial factors
in this regard.
In its 1978 Report on the Situation of Human Rights in El Salvador, the
Commission concluded the following after analyzing the exercise of political
rights: There is widespread skepticism among the citizenry regarding the right to vote and to participate in government. In particular, the political parties of the opposition, in this connection, come to have no confidence in the possibility of having free and honest elections, not only in the light of their experiences during the course of recent elections, but also because of the structure of the electoral system and of the obstacles the parties encounter in trying to organize in the interior of the country. For all these reasons, the Commission considers that electoral rights are not effective under the present circumstances. (p. 165).
As a consequence, in that Report the Commission recommended the following
to the Government of El Salvador: "That
the electoral system be reformed, especially by reorganizing the Central
Election Council, so that the political parties be equitably represented, and
confidence in the system be established."
(p. 167).
In its Seventh Report on the Situation of Human Rights in Cuba, published
in 1983, the Commission said that so few people chose to exercise the vote on
important issues because of the voting mechanisms and because of the way the
Government and the Cuban Communist Party controlled those mechanisms.
After examining the principal features of the Cuban electoral system, the
Commission described the preponderance of that political party as a
counterproductive factor. Its
leaders, said the Commission, "wield decisive influence in the operation of
the mechanisms for the selection of candidates to hold elective office."
(p. 37).
In that 1987 Report on Paraguay, the Commission also makes reference to
the legal and institutional system whose function is to organize elections.
In discussing the elections that have been held in that country, it
examines the effects of the system of proportional representation in effect at
that time, when its provisions were applied to the Electoral Statute (Law
886/81). According to those
provisions, two thirds of the members of the municipal boards and the election
boards were to be members of the Government party.
Those two boards were the two institutions in charge of organizing
elections. The Commission observed
the following: ... the system instituted by the Electoral Statute seriously distorts the electoral process by giving a single party an absolute majority, not only in the legislative bodies, but also in those responsible for organizing the electoral process. Consequently this system lacks the necessary institutional controls to guarantee impartiality of the electoral acts. (p. 98).
In the 1986-1987 Annual Report, the Commission made reference to
the voting process underway in Chile at the time.
It cited the provisions of the Voter Registration Law, the purpose of
which was to organize the procedure for registering voters and to institute the
electoral service. The Commission
points up the criticisms made at the time as to how the provisions of that law
were being put into practice (page 216).
In that same Annual Report, the Commission reported at length on the
crisis in Haiti resulting from the dispute between the Provisional Electoral
Council and the National Governing Council.
The dispute was largely a struggle to control the mechanics of the
election process (pp. 235-243). The
Commission reviewed this matter in greater detail in its 1988 Report on the
Situation of Human Rights in Haiti.
From this recounting of the positions taken by the Inter-American
Commission on Human Rights in connection with specific situations involving the
issue of the authenticity of elections, one could infer that the general
conditions in which the electoral process unfolds must ensure that all groups
participating therein are in an equivalent situation.
What this implies is an absence of any form of coercion.
This, in turn, prompted the Commission to scrutinize the matter of states
of emergency, which curtail the exercise of those civil rights associated with
the exercise of political rights. This measure gives the authorities very important tools with
which to control the oppostion, by imposing restrictions on such rights as
freedom of expression, the right of assembly, the right to residence and
movement, the right to personal freedom and to due process of law.
As for the exercise of the right to freedom of expression, the Commission
examined how governments can use the resources that power puts at their
disposal, both to convey messages favorable to themselves and to restrict the
opposition's opportunities to get out its own messages.
In this regard, the Commission has analyzed the laws governing the
exercise of this right and how they are enforced in practice, looking at the
direct and indirect restrictions that the authorities can use against the
opposition.
As for the right of assembly, the Commission has observed the
restrictions placed on this right when states of emergency or other types of
legal restrictions (police authorizations, for example) are in force or when
indirect controls are used such as compulsory participation by government
employees in demonstrations.
Another particularly important consideration when discussing the general
conditions in which electoral processes unfold are the actions of irregular
groups that employ violence to intimidate those who participate in the electoral
process. The Commission has made
frequent reference to situations of this kind.
It has also looked at those situations in which irregulars are hired by
one of the participants in the process--generally the party in
power--to obstruct those who oppose its positions.
As for the specific elements in the organization of an electoral process,
the Commission has examined the laws that govern it in order to ascertain
whether those laws guarantee proper
exercise of the right to vote and a correct accounting of votes. It has looked carefully at the authority given to agencies
charged with conducting the voting process and overseeing the voting and the
results. And so, the Commission has
scrutinized the institutional system closely.
Its purpose has been to detect any manipulation of the process in favor
of those who control the institutions (generally the government, one political
party or the military forces), to determine who decides whether the vote is
legally valid (membership of the electoral bodies) and how their decisions are
controlled (appellate bodies).
The Commission has made observations on such practical aspects as voter
registration records and the requirements for registering; the membership of the
balloting tables and teller committees; the membership of the electoral tribunal
and its powers; and whether ballots are easy to understand and in no way
influence the voter.
Clearly, the issue of genuine elections has been frequently addressed by
the Inter-American Commission on Human Rights.
It has made reference to the general conditions under which a referendum
is conducted, in terms of whether the various political groups are able to
participate on an equal footing; it has also looked at how the procedure used to
cast votes and tabulate the results is organized, both from the legal and
institutional standpoints. The
Inter-American Commission's purpose has been to get the kind of
information that will enable it to make an informed assessment of how accurately
the final results of a referendum reflect the will of the people, since this is
what makes for the kind of genuine elections of which both the universal and the
regional human rights instruments speak.
b.
Universal suffrage
Another property of elections as set forth in the international
instruments on political rights is that they must be by universal suffrage. This principle of universal suffrage is intended to ensure that all persons qualified to vote will
be able to participate in the election process.
Article 23 paragraph 2 specifies the grounds that the law can invoke for
exceptions to the principle of universal suffrage: "age, nationality, residence, language, education, civil
and mental capacity, or sentencing by a competent court in criminal
proceedings."
The Commission has frequently made reference to specific situations in
which governments deny members of the opposition their right to vote on purely
political grounds. The Commission
has frowned upon such practices. Such
cases have been mentioned along
with other conditions in which certain election processes have been conducted.
In the excerpts cited above, the Commission has made reference to cases
in Haiti, Chile and Paraguay, in which members of the opposition have been
jailed, forced to move elsewhere or exiled.
The excerpts also show how, in the case of Cuba, Chile and Paraguay,
people have been excluded on ideological grounds, i.e., people who subscribe to
certain political philosophies are not allowed to vote. The Commission has criticized exclusions of this type in its
special reports on Cuba in 1983 (pp. 35-37), Chile in 1985 (pp.
265-266), and Paraguay in 1987 (pp. 98 et seq.)
The Commission has also observed situations in which there have been
legal impediments caused by political repression disguised as police
actions--charges of drug trafficking or assaults on the
police--. These can be highly effective, because they are covered under
provisions of the respective penal code. Such
situations point up the relationship of political rights to other basic rights
such as the right to a fair trial and to personal liberty, and their
relationship to a system in which the rule of law and an independent judiciary
prevail, and the ability of the Judicial Branch to protect members of the
political opposition in the exercise of their rights.
The Commission is familiar with certain situations that could be related
to this issue of universal suffrage. Among
them is the situation of refugees and residents living abroad.
These people could carry considerable political weight, so that it might
be good to include them within the electoral process by recognizing their right
to vote. Often, the plight of these
people is much like that of political exiles.
Each one's specific circumstances ought to be examined.
c)
Periodic elections and secret balloting
Periodic elections in which the balloting is secret guarantee that the
electorate will be able to express its will freely.
These are the last two properties cited by the American Convention on
Human Rights in connection with elections in which the citizens express their
will. The idea of periodic
elections has to do with the need for the public to scrutinize the performance
of its government officials and should be tied in with the principle spelled out
in the Declaration of Santiago to the effect that "Perpetuation in power,
or the exercise of power without a fixed term and with the manifest intent of
perpetuation, is incompatible with the effective exercise of democracy."
But it is important to point out that periodic elections have no validity
unless they are also authentic and by universal suffrage.
In the Commission's experience, there are many cases of elections in
which a person or party in power has been "reelected" on a routine and
periodic basis, in elections that are neither authentic nor by universal
suffrage.
As for the secret balloting that guarantees the free expression of the
will of the electors, it should be noted that the Universal Declaration of Human
Rights uses the expression "by
secret vote or by equivalent free voting procedures." These are practical aspects intended to prevent any coercion
at the time the ballot is cast.
From what has been said thus far, one can conclude that the member states
of the Organization of American States have unequivocally opted for
representative democracy as a form of government.
A long process has gradually established the key elements that together
constitute that form of government; for their part, the states have undertaken
international commitments regarding
the scope and protection of certain rights whose observance is linked to
representative democracy.
The scope of the rights originally contained in the American Declaration
of the Rights and Duties of Man is more clearly enunciated in the American
Convention on Human Rights. Article
23 of the latter defines the political rights.
Proper exercise of those rights is related to the observance of other
rights and freedoms such as freedom of expression (Article 13), the right to
personal liberty (Article 7), the right to a fair trial (Article 8), the right
of assembly (Article 15), freedom of association (Article 16), the right to
residence and movement (Article 22) and the right to judicial protection
(Article 25).
The American Convention makes it incumbent upon its States Parties not
only to observe the rights embodied therein--including, obviously,
the political rights and the civil rights related thereto--but also
to guarantee their exercise under the terms of Article 1.1.
The importance that the representatives who drafted the Convention
attached to political rights is evident in Article 27, which states that those
rights cannot be suspended in times of emergency.
When defining those rights that the States parties have undertaken to
respect and promote, the American Convention also institutes the organs charged
with protecting and promoting those rights, while devising the instruments by
means of which those organs shall discharge those functions.
Pursuant to its mandate under the American Convention, the
Inter-American Commission on Human Rights has been observing government
practices as regards political rights in the States Parties.
As a result of information the Commission has reported in that
connection, the General Assembly has made a number of recommendations to the
member states.
The positions adopted by the Inter-American Commission on Human
Rights have developed a body of principles which has been useful in ascertaining
how and to what extent political rights and the civil rights related thereto are
enjoyed. This has been the result
of the Commission's involvement in the daily affairs of several members of the
Organization of American States and has thereby helped to improve the conditions
in which those rights have been exercised.
The experience acquired thus far constitutes an invaluable reserve that
the Inter-American Commission will use to continue to develop its
activities in the cause of human rights and representative democracy in the
hemisphere, in furtherance of the provisions of the international instruments
that govern those rights.
IV. RECOMMENDATIONS
In addition to the specific recommendations made throughout this report,
the Commission wishes to make the following general recommendations:
1.
That the member states that are not parties to the 1969 American
Convention on Human Rights (Pact of San José, Costa Rica) ratify or accede to
said instrument; in the case of those states that have not yet done so, that
they recognize the competence of the Inter-American Commission on Human
Rights to receive and examine interstate communications, pursuant to Article 45
paragraph 3 of the Convention, and the compulsory jurisdiction of the
Inter-American Court of Human Rights, pursuant to Article 62 paragraph 2
of the Convention;
2.
To the states that have yet to do so, that they ratify or accede to, as
the case may be, the Inter-American Convention to Prevent and Punish
Torture and the Additional Protocols to the American Convention on Human Rights
on the subject of Economic, Social and Cultural Rights and Abolition of the
Death Penalty;
3.
That at its forthcoming session, the General Assembly can adopt an
Inter-American Convention to prevent and punish forced disappearances of
persons, proposed by the Commission;
4.
That the member states implement the recommendations of the
Inter-American Commission on Human Rights contained in its 1990-91
Annual Report;
5.
That the General Assembly provide the Inter-American Commission on
Human Rights with the resources it has requested in the 1992-93 biennial
program-budget; 6. That the member states grant greater respect and protection to non-governmental human rights organizations functioning in their territories, thus recognizing the crucial role such organizations play in monitoring respect for human rights.
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On May
15, 1970, the Permanent Council adopted a resolution on terrorism [doc. OEA/Ser.G,
CP/RES. 5 (5/70)]. It
recommended to the Preparatory Committee of the General Assembly that it
include this resolution on the agenda of that body. The General Assembly then adopted a resolution [AG/RES. 4
(I-E/70)] in which it condemned acts of terrorism and instructed the
Inter-American Juridical Committee to prepare "an opinion on the
procedures and measures necessary to make effective the purposes of this
resolution." It further
instructed the Inter-American Juridical Committee to prepare "one
or more draft inter-American instruments on kidnapping, extortion, and
assaults against persons, in cases in which these acts may have
repercussions on international relations." |