REMARKS BY THE
CHAIRMAN OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
ROBERT KOGOD GOLDMAN,
AT THE OPENING OF THE
ONE HUNDRED AND FOURTH REGULAR SESSION
Washington, D.C., September 21, 1999
Mr. Chairman of the Permanent Council, Mr. Secretary General, Mr. Assistant Secretary General, Permanent Representatives, Observers, Members of the Inter-American Commission on Human Rights, Mr. Executive Secretary of the Commission and other members of its Secretariat, ladies and gentlemen:
I am very pleased to formally open the Commissions one hundred and fourth regular session. With me today are the Commissions First Vice Chairman, Helio Bicudo, and its Second Vice Chairman, Dean Claudio Grossman, as well as Commissioners Carlos Ayala Corao and Jean Joseph Exumé.
I wish to inform the Permanent Council that by letter dated 16 September of this year the distinguished member of the Commission from Barbados, Sir Henry Forde, advised me that due to the number of his personal, national and regional commitments he felt obliged to regretfully withdraw his membership on the Commission. We fully understand the reasons for his decision and will greatly miss his wise counsel. On September 17, I notified the Secretary General of Sir Henrys resignation so that the process for filling the vacancy on the Commission, as provided for in Article 11 of the Commissions Statute, may get underway.
It is with considerable pleasure that I inform you that tomorrow morning the President of Venezuela, Hugo Chavez, will be coming to the Commission. Although the Commission has a long tradition of meeting with heads of state during its on site visits, this is, I believe, the first time that a head of state has requested to meet with the Commission at its headquarters. We are indeed honored by President Chavezs initiative and look forward to discussing with him his vision of Venezuelas future and related matters. We are particularly indebted to Ambassador Contreras and her staff for having facilitated these arrangements.
During this session, the Commission shall hold 52 hearings on such diverse matters as pending cases, precautionary measures, friendly settlements, and the general human rights situation in various member states. In addition, it will take decisions on the following matters: individual cases and petitions, including reports on admissibility, inadmissibility, the merits of disputes and publication of the same; the possible referral of cases to the Inter-American Court of Human Rights; forthcoming on site visits; and the work of its thematic rapporteurs. The Commission will also adopt decisions on several country reports and approve guidelines applicable to the reform of parts of its Regulations.
Since the conclusion of its one hundred and third special session on May 7 of this year, the Commission has undertaken a series of activities in accordance with its mandate. For example, from July 7 to 9, the Commission conducted an on-site visit to El Paso, Texas at the invitation of the Government of the United States of America for the purpose of observing and gathering information concerning immigration and asylum processes in that region. The Commission will use this information for the preparation of a report on the human rights situation of migrant workers and their families in the hemisphere. As you may recall, this project was endorsed by the Presidential Summit held in Santiago, Chile, as well as by a resolution approved this past June by the General Assembly of the OAS.
The Commission also undertook from July 28 to 30 an on-site visit to the Republic of Paraguay, at the invitation of the Government, to observe the overall human rights situation. During its stay, the Commission had the opportunity to meet with the President, Dr. Luis Angel González Macchi, as well as with other officials of the executive, legislative and judicial branches. It also met with representatives of various sectors of civil society, including human rights organizations, religious organizations, indigenous groups, trade union leaders and alleged victims of human rights. At the end of its visit, the Commission issued a press communiqué, which contained some preliminary views with regard to the general situation of human rights in the country. The Commission is currently evaluating the information gathered during this highly productive visit with a view to the preparation of a draft report on the situation of human rights in Paraguay.
The Commission wishes again to express its gratitude to the Governments of the United States and Paraguay and their respective missions to the OAS for the cooperation and facilities which they provided in connection with the preparation and realization of these visits.
I would also like to note that with respect to the invitation from the Government of the Republic of Haiti to conduct an on-site visit to that country, the Commission is continuing its conversations with representatives of that State to arrive at mutually convenient dates for that visit.
Since its last meeting, the Commission also took decisions to submit the following four cases to the Inter-American Court of Human Rights; on May 25, Case 11.816 Haniff Hilaire against Trinidad and Tobago; on June 7, Case 11.455 Miguel Aguilera, Wolfang Quintana, Ricardo Paez and others against Venezuela; on June 9, Case 11.123 Jose Carlos Trujillo Oroza against Bolivia and on July 2d, Case 11.760 Constitutional Tribunal against Peru. During this period the Commission also sought provisional measures from the Court in several cases under study.
The Commission will hold a joint meeting with the Inter-American Court of Human Rights on November 20 in San Jose, Costa Rica. This annual meeting of the Commission and the Court will roughly coincide with several events being organized by the Government of Costa Rica with the Court to commemorate the 30th Anniversary of the American Convention on Human Rights, the 20th Anniversary of the Court and the 40th Anniversary of the Commission. We look forward to this meeting with the Court and participating in these other important events.
Mr. President, I would like to briefly address several issues concerning the dialogue recently initiated by the Committee on Political and Juridical Affairs of the Permanent Council regarding the inter-American human rights system. It is our understanding that this dialogue will seek to evaluate, in particular, the roles and procedures of the Inter-American Court and Commission. Let me assure you that the Commission has expressed to Ambassador Heller, the Committees Chairman, its support for this initiative and welcomes the opportunity to participate in this process. We believe that this process should be forward looking and result in strengthening the institutional framework of the system, both at the national and regional level, so as to enhance respect for the basic human rights of the citizenry of the hemisphere. We also believe that consistent with the spirit, if not the letter, of the Plan of Action of Santiago representatives of civil society, specifically human rights NGOs, who are principal actors within the system, should be provided ample opportunity to make their views known to member states as this dialogue develops.
While it is altogether fitting that this dialogue focus on the workings of the Commission and the Court, we would also suggest that special attention be paid to the following three items: 1) the budgets of the Commission and the Court; 2) observance by member states of their respective human rights obligations, and 3) compliance by those member states that are parties to the American Convention with the decisions and orders of its supervisory organs.
With regard to the first item, in my remarks to the General Assembly this past June on behalf of the Commission, I noted that although the Commission recognized the commitment of member states in designating it a priority area within the Organization, its ability to discharge its broad and diverse mandate requires a commensurate commitment of financial and human resources.
The unhappy reality is that the Commissions total budget of $2.9 million for this fiscal year represents less than 3.4 percent of the Organizations overall budget. Of this $2.9 million, approximately $2 million goes to the salaries and benefits of the Commissions staff. The remaining amount barely covers the costs associated with the preparations for and the holding of two regular and one special session of the Commission, the publication of our Annual Report, performance contracts, supplies and the like. Thus, as a practical matter, the budget effectively does not include sufficient funds for the Commission to undertake as a whole a single on site visit to a member state or to litigate cases before the Court.
I should point out parenthetically that over the past four years the Commission has conducted two to three on site visits to member states each year. Moreover, the Commission presently has 23 contentious cases and 30 provisional measures pending before the Inter-American Court of Human Rights. This means that each year various members of the Commission serving as delegates in cases, accompanied by staff attorneys, must travel three times a year to the Courts seat in San Jose, Costa Rica to participate in public hearings on these matters. In addition to this investment of the Commissions human and financial resources must be added the expenses of transporting and lodging witnesses whose testimony is essential for the successful litigation of these cases. In recent years the Commission has spent between $40,000 to $90,000 per year on these aspects of its work before the Court.
That the Commission must depend on the generous voluntary contributions of a particular member state and the largesse of several Western European states, namely, Denmark, Spain and Sweden to finance these important parts of its mandate should be a matter of considerable concern, as well as perhaps some embarrassment, to the members of this Organization.
Ladies and gentlemen. What the Commission does not need is more commissioners. What it does need, in addition to a healthy infusion of new financial resources, is a significant increase in the number of skilled lawyers with proven expertise in the field who are chosen in a transparent competitive process so that we can more expeditiously process the nearly 1,000 cases currently on the Commissions docket.
With regard to the second of these items I mentioned, it might be interesting and fruitful to reflect not only on the way the Commission and the Court exercise their supervisory powers, but also on the responsibilities of states parties within the framework of the system established under the American Convention. It is a frequently overlooked fact that ensuring the implementation of the American Convention rests foremost with the states parties themselves, in particular, their judicial branches.
Under the Convention, states parties not only pledge to secure to all persons subject to their jurisdiction the rights and freedoms recognized in the Convention, but also undertake to accord domestic legal effect to and harmonize their interpretations of domestic rules with those rights and freedoms. As a corollary, they may have to modify or perhaps even derogate any domestic legal norm that is incompatible with their obligations under the Convention. States parties are similarly required to provide effective judicial remedies to all persons claiming violations of these protected rights and freedoms. The rule of prior exhaustion of domestic remedies enshrined in the Convention is based on the principle that a state must be accorded the full opportunity to provide redress on its own and within the framework of its domestic legal system. Accordingly, the international protection provided by the supervisory organs of the Convention is essentially of a subsidiary nature. The preamble to the Convention is clear in this respect when it refers to international protection as reinforcing or complementing the protection provided by the domestic law of the American States.
It is therefore troubling that the Commission has increasingly encountered in concrete cases instances where State Parties have failed to make Convention based rights operative under domestic law or where judges have applied norms of domestic law in contravention of their engagements under the Convention. Clearly, if such rights are not recognized under domestic law, there can be no effective domestic remedies to redress their violations. Happily, certain states parties have adopted specific measures aimed at ensuring and facilitating compliance with their Convention based obligations. For example, some states directly incorporate provisions of the Convention into domestic law, while others assign the Convention priority status over domestic law. In addition, certain states have devised mechanisms for giving internal legal effect to the decisions and recommendations of the Conventions supervisory organs. Inasmuch as states parties have primary responsibility for safeguarding the human rights guaranteed under the American Convention, some reflection on how these States are discharging their solemn responsibilities in this respect might be in order.
The third item that we recommend that the Committee on Political and Juridical Affairs study concerns compliance by States Parties to the American Convention with the decisions and orders of the Conventions supervisory organs. As I noted to the General Assembly this past June, such compliance is crucial to the vitality and integrity of this Organizations human rights system.
In this regard, over the last several months two states, namely Trinidad and Tobago and Peru, have taken actions that are utterly inconsistent with their international engagements under the Convention, which the Commission wishes to bring to the attention of the Permanent Council.
With regard to Trinidad and Tobago, on August 29, 1998, the Inter-American Court of Human Rights, exercising its powers under article 63(2) of the Convention, issued provisional measures in respect of Anthony Briggs and 7 other death row inmates in that country. In issuing these provisional measures, the Court ordered Trinidad and Tobago to "take all measures necessary to preserve the life and physical integrity" of Mr. Briggs and the 7 other inmates "so as not to hinder the processing of their cases before the Inter-American system." On May 25, 1999, the Court decided to maintain the provisional measures issued in favor of Mr. Briggs, "until such time as the Court, having previously considered the reports concerning the present status of his case, issues a decision on this matter."
Also on May 25, 1999, the Court decided to amplify the provisional measures issued in favor of Mr. Briggs and others to include Joey Ramiah and 19 other death row inmates in Trinidad and Tobago. Accordingly, the Court ordered Trinidad and Tobago to take "all measures necessary to preserve the lives" of Joey Ramiah and the 19 others "so as not to hinder the processing of their cases before the Inter-American system."
By letter dated June 7, 1999, the solicitors for Joey Ramiah informed the Commission that Trinidad and Tobago had executed Mr. Ramiah on June 4, 1999, while the General Assembly was being held in Guatemala.
On July 23, 1999, the petitioners acting on behalf of Anthony Briggs informed the Commission that Trinidad and Tobago had read a warrant of execution to him that same day advising him that he was scheduled for execution on July 28, 1999. By letter dated July 27, 1999, the Commission informed Trinidad and Tobago that to execute Mr. Briggs would "directly contravene the explicit terms of the Inter-American Courts binding order and, thereby, constitute a flagrant breach of Trinidad and Tobagos international legal obligations."
On July 28, 1999, Trinidad and Tobago executed Mr. Briggs.
With regard to Peru, the pertinent information is as follows: on September 19, 1997, the Inter-American Court issued its judgment on the merits in the case of Maria Elena Loayza Tamayo in which it found Peru responsible for multiple violations of the American Convention. The Court ordered Peru to free Ms. Loayza "within a reasonable period of time", which it did, releasing her from prison on October 16, 1997. It also ordered Peru to pay just compensation, for which purpose the corresponding procedures before the Court were initiated. On November 27, 1998, the Court handed down its judgment on reparations in which it ordered that Ms. Loayza be reinstated to her previous teaching activities, that just compensation be paid, as well as the legal expenses associated with the case. On June 3, 1999, the Court, at the request of Peru, issued an interpretation on the scope of the order regarding the payment of honoraria and expenses of the November 27th judgment, and reaffirmed those aspects of its decision.
On May 30, 1999, the Court issued its merits decision in the case of Castillo Petruzzi and others. This case involves four Chilean citizens who were tried, convicted and sentenced to life imprisonment for the crime of "treason against the fatherland" by a "faceless" military court. The Court found, inter alia, numerous violations of the right to due process and ordered Peru to retry these Chilean nationals in a civilian court with the requisite due process guarantees. In addition, the Court ordered the State to adopt the appropriate means to modify the domestic norms which the Court found to be in violation of the Convention and ordered the State to pay US$ 10,000, or its local equivalent, to the relatives of the Chileans, as recompense for the costs expended pursuing the case.
On June 11, 1999, Perus Supreme Council of Military Justice issued a resolution which declared that the Inter-American Courts judgment in the Castillo Petruzzi case could not be executed (inejecutable). Perus Supreme Court issued a similar resolution on June 14, 1999, opining that the Inter-American Courts judgment on Reparations in the Loayza case could not be executed. Thereafter, on July 1, 1999, by means of a note from Perus Permanent Representative to the O.A.S., Ambassador Beatriz M. Ramacciotti, to Secretary General Gaviria, the Peruvian Government indicated that it would not comply with the Courts judgments in these two cases.
I should note in this regard that the Inter-American Court, which began a new period of sessions on September 16, publicly stated that it will address during this session Perus noncompliance with its judgments in these two cases. The Court also indicated that it will address the effects of Perus putative "withdrawal" of its acceptance of the Courts jurisdiction. As you may know, on July 9, 1999, Peru filed with the General Secretariat of the OAS a declaration stating that it "withdraws" its Declaration of acceptance of the contentious jurisdiction of the Inter-American Court. The State indicated that its "withdrawal" will have "immediate effect" and will apply to all cases in which Peru has not responded to applications filed before the Court.
The Commission would like to point out that article 68 of the American Convention declares categorically that "the States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties." Let me reiterate what I said at the General Assembly. The Commission regards noncompliance with the binding decisions and orders of the Inter-American Court to be extremely troubling and, at the very least, to merit serious discussion and appropriate action by the political bodies of this Organization.
Finally, my colleagues on the Commission join me in expressing our deep gratitude to our Executive Secretary, Ambassador Jorge Taiana, and the Commissions staff for their tireless efforts and dedicated work on behalf of the peoples of the region. I should also like to extend on behalf of the Commission our support and best wishes to Cesar Gaviria as he begins his second term as Secretary General of the Organization of American States.