CHAPTER VI 

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

          As indicated, the Commission at this time fully endorses the decisions taken by the heads of state and government, and from the perspective of the inter-American system and of the specific responsibility that the OAS Charter and the Pact of San José have entrusted to the IACHR, the Commission will address the decisions of the heads of state and will point out how, in its view, the governments should proceed to implement these promptly.

          Below is a review of each of the decisions adopted in the Plan of Action by the heads of state and government at the Summit of the Americas.

          1.       Give serious consideration to adherence to human rights instruments to which they are not already party

          Without prejudice to the instruments concluded in the United Nations and of those adopted by the old Pan American Conferences, and the conventions on diplomatic and territorial asylum, the main inter-American human rights instruments are the following:

          a.       The American Convention on Human Rights, known as the Pact of San José, Costa Rica, 1969;

          b.       The Inter-American Convention to Prevent and Punish Torture, adopted in Cartagena de Indias in 1985;

          c.       The Additional Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights, "Protocol of San Salvador," adopted in 1988 at the OAS General Assembly in San Salvador;

          d.       The Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted at the OAS General Assembly in 1990 in Asuncion, Paraguay; and

          e.       The Inter-American Convention on the Forced Disappearance of Persons, adopted by the General Assembly in 1994, in Belém do Pará, Brazil

          Of all these instruments, certainly the most important is the American Convention on Human Rights, to which 25 OAS member states are party.  The states that have not acceded to it are:  Antigua and Barbuda, The Bahamas, Belize, Canada, Cuba, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and the United States.

          The other instruments have unfortunately not had a large number of accessions or ratifications despite the effort made by the Organization to promote these important conventions.  In fact, the Convention to Prevent and Punish Torture has been signed only by Argentina, Brazil, Chile, Dominican Republic, Guatemala, Mexico, Panama, Paraguay, Peru, Suriname, Uruguay and Venezuela; the Protocol of San Salvador, by Ecuador, Panama and Suriname; the Protocol on the Abolition of the Death Penalty, by Panama, Uruguay and Venezuela; and the Inter-American Convention on the Forced Disappearance of Persons, by twelve states with no ratifications.

          The Commission has been urging year after year that all the states should be party at least to the Pact of San José.  It vigorously supports the stand taken by the heads of state, and again appeals for ratification of these instruments as soon as possible, especially the American Convention on Human Rights, which is the cornerstone of the entire inter-American system for the protection of human rights.

          2.       Cooperate fully with all inter-American and United Nations human rights bodies

          The effectiveness of an organ to protect human rights depends both on the powers given it by its constituent instrument and on the cooperation the States give it.  Without that cooperation, it really cannot do its work effectively.  Accordingly, the decision of the heads of state and government that the governments should cooperate with human rights bodies is especially important for the IACHR.

                    It is true that, as a general rule, most OAS member countries have cooperated with the IACHR, but at the same time it is important to underscore that such cooperation must be maintained and increased as much as possible.  In the Commission's view, it is particularly important in this connection that the countries give their consent when the Commission asks to make an on-site observation visit, and that when it makes such a visit, they furnish it with all the facilities it needs to accomplish its task.  Regarding the Commission's requests in relation to the processing of individual cases, the governments are obligated to provide promptly all the information the Commission needs to achieve the objectives assigned to it by the OAS Charter and the American Convention on Human Rights.

          The Commission wishes to reiterate its concern, which it has voiced on previous occasions, about the difficulties it has often encountered in getting adequate replies from some governments, as well as the lack of compliance with the Commission's recommendations on cases being processed and on other specific matters that it considers necessary to resolve.  The lack of compliance with the Commission's recommendations is particularly unfortunate when they refer to serious violations of basic rights guaranteed by the American Convention.

          3.       Develop programs for the promotion and observance of human rights, including educational programs to inform people of their legal rights and their responsibility to respect the rights of others

          This important decision has been considered by the Commission.  In several previous reports, the IACHR has pointed out the importance for the inter-American rights protection system to develop programs to promote the observance of human rights, especially through educational programs to inform all the people of member countries about basic concepts on human rights and basic freedoms.  Since its 1978 Annual Report, the IACHR has been recommending that member countries and the OAS itself adopt programs to teach about human rights and other measures to promote those rights.

          These programs, as the Commission has pointed out earlier, should be organized by each country in light of its own distinctive features and culture, and should preferably cover all sectors of the population, beginning with primary school, followed by secondary schools, and universities (undergraduate and graduate programs), through special courses on human rights protection nationally and internationally.  It is very important for the promotion programs to cover sectors that have special responsibility for monitoring and protecting human rights, such as the courts, the Justice Departments (Ministerios Públicos), the security forces and the armed forces.

          The Commission considers that, while the distinctive features of each member country should be taken into consideration, this training should not be confined to studying the provisions of the domestic legal system, but should include basic instruction on global and regional international instruments.

          The Commission has noted with satisfaction that some countries have already started programs in which the Commission and the Inter-American Institute of Human Rights have participated and collaborated.  The work done in this field has been assigned priority by the heads of states.  The Commission wishes again to say it stands ready to do everything in its power, in collaboration and coordination with other institutions and organizations both governmental and nongovernmental, to have this important decision implemented.

          4.       Promote policies to ensure that women enjoy full and equal legal rights within their families and societies, and to ensure the removal of constraints to women's full participation as voters, candidates, and elected and appointed officials

          The IACHR considers this Summit decision especially important.  The Commission has been working on this topic for several years.  At its 85th session, the Commission set up a working group to draw up, in consultation with the Inter-American Commission of Women (CIM), a report on the compatibility of domestic laws with the American Convention in the protection of women's rights, particularly  on any discrimination there might be against women in the domestic legal system of some OAS member countries.

          Another issue on which the Commission has expressed its deep concern in several of its reports is the humiliating case of rape and other cruel, inhumane and degrading treatment committed against imprisoned women by members of the security forces in some member countries.  On this topic, the IACHR plans, in coordination with other governmental and nongovernmental organizations, to draft special reports on those countries where the number and seriousness of the complaints and other information received by the Commission warrant a study being made of this situation.

          5.       Review and strengthen laws for the protection of the rights of minority groups and indigenous people and communities to ensure freedom from discrimination, to guarantee full and equal protection under the law, and to facilitate active civic participation.  Support a process to review and enhance the protection of indigenous rights in OAS member states, and to develop promptly an effective United Nations declaration on indigenous rights

          "Special protection of indigenous peoples is a sacred obligation of the States," the Commission asserted in 1972.  Since then, the Commission, on several occasions, it fulfilled its general mandate to concentrate its efforts on seeking solutions to violations of the rights of indigenous people, individually or collectively.[1]  The Commission received complaints about murders, torture and genocide committed against indigenous peoples.  These violations resulted from invasions of indigenous lands, road construction, settlement projects, development projects that damage the habitat, attacks on and massacres of indigenous civilian populations during military actions against guerrillas, discrimination and attacks on freedom of speech and worship.  The IACHR conducted research, published reports, and submitted resolutions to the General Assembly.  The most important of these was perhaps the resolution drawn up in 1985 demanding the right of the Yanomami to lead their own lives and possess the land they live on.

          In resolution AG/RES. 1022(XIX-0/89), the General Assembly asked, on the Commission's recommendation, that preparations begin on an inter-American legal instrument on the rights of indigenous peoples.  Based on technical support from many governments, national and international organizations and experts, the Commission initiated in 1995 extensive consultations regarding the first draft of an "American Declaration on the Rights of Indigenous Peoples," which it hopes to submit to the General Assembly in 1996.

          Reaffirming the General Assembly's decision, a large number of member countries have reiterated how necessary and important it is to produce a regional instrument on this subject.

          Although preparation of this instrument is, in the Commission's view, the most immediate step needed to implement the decision of the heads of state in the Miami Summit, it is not enough.  Study and protection of the rights of indigenous people and minorities by the OAS with the participation of the IACHR and other OAS sections should include:

          -Special attention to individual complaints and petitions received by the IACHR on alleged violations, when such violations emerge from discriminatory attitudes against indigenous or minority peoples, as well as from follow-up on the implementation and the effects of compliance with resolutions of the Commission and the Court on these cases.

          - Special attention by the IACHR to such topics in its special country reports, as has been done in recent years.

          - Strengthening technical institutional ties between the IACHR and the United Nations system, and with the ILO in the effort to protect indigenous peoples and minorities.

          - Basic studies on legislation and practices of government organizations concerning these issues, evaluating their positive effects and/or attacks against the rights of indigenous peoples and minorities.

          - Develop capabilities for preventive, mediation or advisory intervention for the peaceful and legal settlement of disputes concerning or attacking rights in these sectors.

          - Enhance OAS capabilities as a forum and institution for analysis of problems, demands, and solutions concerning the rights of these groups, with the joint or ad-hoc intervention of the IACHR, the Inter-American Indian Institute, the Inter-American Institute of Human Rights, the Inter-American Juridical Committee, and the OAS Education, Science and Culture areas, as well as the Regional Development and Trade areas, CICAD, CIM, the IIN, etc., in the fields of their competence.

          - Facilitate the access of institutions representing indigenous peoples and minorities to OAS forums and mechanisms, and to its training and fellowship programs.

          6.       Review national legislation affecting people with disabilities, as well as benefits and services for them, and make any changes needed to facilitate the enjoyment by these individuals of the same rights and freedoms as other members of society

          The Commission has also been concerned with this important issue, which affects hundreds of thousands of children, women and men in the Americas, who are for the most part marginalized from society.  In its 1980-81 Annual Report, the Commission recommended that member countries include legislative provisions, within their respective overall development plans, to improve the marginal situation of the disabled and the handicapped.

          Subsequently, the OAS General Assembly, in adopting the Additional Protocol in the Area of Economic, Social and Cutural Rights, in San Salvador, in 1988, included the following provision in Article 18:

Protection of the Handicapped

          Everyone affected by a diminution of his physical or mental capacities is entitled to receive special attention designed to help him achieve the greatest possible development of his personality.  The States Parties agree to adopt such measures as may be necessary for this purpose and, especially, to:

         a. Undertake programs specifically aimed at providing the handicapped with the resources and environment needed for attaining this goal, including work programs consistent with their possibilities and freely accepted by them or their legal representatives, as the case may be;

         b. Provide special training to the families of the handicapped in order to help them solve the problems of coexistence and convert them into active agents in the physical, mental and emotional development of the latter;

         c. Include the consideration of solutions to specific requirements arising from needs of this group as a priority component of their urban development plans;

         d. Encourage the establishment of social groups in which the handicapped can be helped to enjoy a fuller life.

          The OAS has also been concerned with this issue: the General Assembly, by resolution AG/RES.1249(XXIII-0/93), took cognizance of the problems now arising with regard to the situation of the handicapped in the hemisphere and instructed the Permanent Council to explore, in cooperation with the Pan American Health Organization (PAHO), the possibility of establishing an agency devoted to the problems of the handicapped.  Later, in resolution AG/RES.1296 (XXIV-0/94), the General Assembly urged member countries to cooperate in adopting specific measures to improve the health of the handicapped, assimilate them into society with the full exercise of their rights and duties, and identify the risks that cause disability and prevent them.  In 1990, the Pan American Sanitary Conference instructed PAHO to continue its efforts to cooperate with member countries and with local and international organizations in developing programs and activities to prevent disability, and to fully integrate the handicapped into society.

          The Commission considers that, together with multilateral efforts, it is important for those countries that have not yet done so, to promptly implement the decision of the heads of state and government by  reviewing their domestic law in order to include the handicapped in the benefits and rights enjoyed by all other members of society.

          The Commission trusts that in the near future this will be a topic regarding which no country or government will have failed to join in this urgently needed effort.

          7.       Undertake all measures necessary to guarantee the rights of children, and where they have not already done so, give serious consideration to ratifying the United Nations Convention on the Rights of the Child

          This is a topic of great importance.  Often abuse of children is one of the worst violations of human rights, and concern that children, who should be the only privileged members of society, not only can enjoy their rights, but are not the targets of violence. should be one of the focuses in ensuring that human rights are genuinely respected.

          The Commission again expresses its readiness to help in fully implementing this decision of the heads of state and government.

          8.       Guarantee the protection of the human rights of all migrant workers and their families

          The Commission has addressed this issue in several of its reports, particularly in those cases where persecution or violation of the judicial guarantees of due process and judicial protection have been charged.

          In the Commission's view, this topic is linked to various rights set forth in the Additional Protocol in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).

          9.       Take the necessary steps to remedy inhumane conditions in prisons and minimize the number of pretrial detainees

          This is one of the problems that have most concerned the Commission in recent years.

          From the quantitative standpoint, probably the most frequent human rights violation at this time in the hemisphere is the one mentioned here by the heads of state and government.  In many of our countries, inhumane conditions continue to exist in our jails, and one of the many reasons for this is overcrowding and the housing together of convicted criminals with inmates awaiting trial or sentencing.

          Often, because of excessive delay in trying detained persons, a very high percentage of the prison population is detained in many countries for excessively long periods, without the determination by a court of whether they are guilty or innocent.  This delay results in grave injustice for those who, after several years of imprisonment, are found innocent.  These delays constitute obvious violations of the right to be presumed innocent and to due process of law.

          The Commission considers that one of the main concerns in the human rights area that should be addressed by our countries in the coming years should be the improvement of penal procedures of many countries to streamline the processing of criminal cases so as to quickly determine the fate of an accused person through a speedy trial.  This is one of the issues that, in the Commission's view, should be given priority by the countries.

          10.     Review training curricula for law enforcement agents to ensure that they adequately cover proper treatment of suspects and detainees as well as relations with the community

          This decision taken by the heads of state relates to some of the other decisions mentioned above.  It is clear that the observance of human rights will improve as law enforcement agents are trained in this area so they will fully comply with international and national rules on human rights protection.

          11.     Exchange experiences on protection of human rights at the national level and, where possible, cooperate in the development of law enforcement agents and security forces training or other programs to reduce the potential for human rights violations

          This Summit decision is closely linked to decision 3 on the development of programs for human rights promotion, training and education.  Several member countries of the Organization have adopted human rights training and education programs for their security forces, the judiciary and the justice department.  As indicated in the comment on item 3, the Commission will continue to concern itself with this issue and stands ready to exert every effort to be of service to OAS member country governments in this area.

          The Commission considers that many violations of the right to a fair trial are due to lack of awareness by the security forces and sometimes by the judges themselves of the obligations the states parties to international human rights instruments have undertaken.  The Commission has addressed this issue on numerous occasions, both in the general reports and in the reports on individual cases.

          12.     Call on the OAS and the Inter-American Development Bank to establish or to reinforce programs, as appropriate, to support national projects for the promotion and observance of human rights in the Western Hemisphere

          This is a decision the Commission applauds.  In the 70s and 80s, when democracy did not exist in many of the countries, and serious human rights violations were occurring, a number of nongovernmental organizations devoted to the dissemination and promotion of human rights received substantial assistance from the international community in the very important effort at that time of protecting the human rights that were being taught.  With the  reestablishment of democracy, when fortunately many human rights problems were being overcome, that aid has declined.  But it is also timely now for both these organizations and many others to contribute, with the participation of the governments in this new context, to strengthen democratic institutions and promote the observance of human rights in the Western Hemisphere.  In this regard, such tasks as strengthening the judiciary, teaching human rights at various levels, and including marginal sectors of society such as the indigenous peoples, the handicapped, children and in some cases women, appear to be essential in modern democratic societies.

          Accordingly, the Commission applauds this decision of the heads of state and trusts that, through the mechanisms available in the OAS and the financing of the IDB, other programs can be established or existing ones can be renewed to implement this decision of the heads of state and government.

          13.     Further strengthen the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights

          The Commission has for the last thirty-five years been performing work for which it has had neither the institutional structure nor the sufficient resources to fulfill the responsibilities entrusted to it.  In the period covered by this report, the Commission has been processing 641 individual cases, has made seven on-site observation visits, has drafted three special reports on various states, and has submitted three contentious cases to the Inter-American Court of Human Rights, requesting an advisory opinion from the Court on them.

          To carry out this wide range of tasks, the Commission has only been able to hold two meetings of its members annually.  The Commission is supported by an Executive Secretariat with only ten lawyers.

          As the Commission has been pointing out recent years, it is unquestionably of basic importance for it to be provided with the resources needed to strengthen it.

          Without prejudice to the foregoing, the Commission, based on this decision of the heads of state, specifically requests an increase in its budget, and the allocation of more human resources, so it can might have available the tools it needs to carry out more effectively the duties assigned to it under inter-American instruments.