San José, Costa Rica October 2, 2000 


I would like first to express my gratitude for this opportunity to present the opinions of the Inter-American Commission on Human Rights to this Ad Hoc Working Group, whose creation demonstrates the interest of the member states to strengthen the inter-American system for the protection of human rights and whose outcome we hope will be to enhance and improve protection for the fundamental rights of the peoples of the Hemisphere.  I would also like to express the Commission’s satisfaction with the seminar it recently concluded with the Inter-American Court; it will come as no surprise to you that the two organs share a common outlook on what is needed to strengthen the system and how it can be done. 

Before addressing the issues raised in the framework of this Ad Hoc Working Group, we should point out that any realistic debate on strengthening the system should be based on the current situation of human rights in the Hemisphere.  Legitimate democracy, periodic elections, a well-structured civil society, and governments and peoples seeking to enhance protection and promotion of human rights are positive aspects and open up huge possibilities.  At the same time, we face immense challenges. 

Reality shows that our peoples suffer violence, discrimination, and exclusion.  We live in a context in which millions of men, women, and children lack the resources to satisfy their basic needs and obtain equitable access to education and basic services.  Economic exclusion is compounded by the exclusion generated by discrimination and obstacles to free dissemination of information that undermine the exercise of democracy.  Sadly, even now, 70% of the cases before the Commission concern violations of the right to life.  The use of torture as a form of punishment or means to obtain information has not been eliminated from the region.  Prison conditions fail to meet minimum standards, and more than 70% of prisoners have not been convicted. 

Added to this are systems of justice administration that very often do not offer guarantees of independence, impartiality, and effectiveness.  In many countries the workings of judicial systems are plagued with basic shortcomings that, for instance, prevent effective access to justice for citizens of limited means; or cast doubt on the impartiality of judges, owing to structural problems such as the non-permanence of their posts, judgments delivered by military courts, widespread corruption, and fear of reprisal.  These problems, inter alia, have resulted in impunity and weakened or even destroyed confidence in the Judiciary and, consequently, the rule of law.   

Given this panorama, the regional protection system for the fundamental rights of our peoples now, more than ever, needs mechanisms that make it possible to assess this situation and take appropriate action, as well as bodies capable of effectively carrying out their mandate and whose decisions have the backing of the members of the Organization as collective guarantors of respect for fundamental rights in the Hemisphere.   

With all due respect to this Working Group, the Commission believes that discussions on strengthening the system should center on the following aspects.   

1.       Respect for international obligations by member states and the subsidiary nature of the system 

          The main responsibility for ensuring respect for the rights protected by the system lies with the member states themselves, in particular with their respective judiciaries.  Accordingly, it would be important for the Ad Hoc Working Group to reflect not only on the ways in which the Commission and the Court exercise their supervisory powers, but also on the responsibilities of both the States Parties and the political bodies in the system established by the Organization.   

          The system’s norms provide that the states not only undertake to ensure to all persons subject to their jurisdiction the rights and freedoms recognized therein, but also to give legal effect to those rights and freedoms in the domestic sphere and to harmonize interpretation of the laws in force. Consequently, we propose that the states amend, or even abolish, any domestic provisions that may be at odds with obligations acquired in the framework of the inter-American system of human rights. The States Parties would, therefore, be under obligation to provide legal remedies to any persons who consider their rights and freedoms to have been violated.  The rule of prior exhaustion of domestic remedies provided for in the Convention is based on the principle that a state must have the possibility of providing redress for the violation within the framework of its own jurisdiction. Consequently, the international protection provided by the supervisory bodies is, essentially, of a subsidiary nature.  In keeping therewith, the relevant documents clearly refer to international protection as a system designed to reinforce or complement the protection provided by the domestic law of the American states. 

          The Commission finds itself increasingly compelled, however, to deal with concrete cases where States Parties have failed to make Convention-backed rights operative under domestic law or where judges have applied norms of domestic law in contravention of the obligations freely contracted 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 – and this is a very positive aspect, certain States Parties have adopted specific measures aimed at ensuring and facilitating compliance with their obligations adopted under the system’s norms.  For example, some states directly incorporate provisions contained in human rights instruments into domestic law, while others assign those instruments priority status over domestic law. 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. 

2.          Compliance with the decisions and orders of supervisory bodies 

One vital aspect for strengthening the system is compliance with the decisions of the Court and with the reports of the Commission.  In that respect, it is worth reiterating the obligation of the states to establish domestic procedures for enabling such compliance.  As the Commission pointed out at the General Assembly in June 1999, such compliance is crucial to the vitality and integrity of this Organization’s human rights system.  The Commission recalls 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." Insofar as the Commission is concerned, its reports are valid interpretations of the obligations freely acquired by the states.  If a state does not concur with those interpretations it is at liberty to appeal to the Inter-American Court, in order to dispute the Commission's conclusions and procedures.  It is significant that, to date, no state has ever lodged an appeal against the reports of the Commission in contentious cases. 

3.      The role of the political bodies of the OAS in strengthening the system 

The political bodies of the OAS have a pivotal role to play in ensuring compliance with the decisions of the organs of protection.  Strengthening the system does not depend solely on, nor is it confined to, the functioning of the supervisory bodies. In the final analysis, the effectiveness of the system depends on the action that the political bodies are prepared to take against those who disregard their international obligations.  The states and the political bodies stand as the collective guarantee of compliance with human rights norms. To that end, at the very least it is necessary to discuss reports on human rights violations, as well as noncompliance with decisions of the political bodies whenever they occur.  As the Commission mentioned at the General Assembly, noncompliance with the binding decisions and orders of the Inter-American Court is extremely troubling and merits serious discussion and appropriate action by the political bodies of the Organization.  We believe that both the future of the system and the credibility of those political bodies and of the process of change, in which they are caught up, depend on this. 

4.          Enhancement of procedural norms and practices in force 

          The Commission believes that the workings of the system can be improved by modifying certain procedural practices and norms relating to the individual cases system.  The Commission is convinced that a process of this nature can, for the time being, be effectively addressed by making appropriate amendments to the regulations of the organs of protection, in a process of "trial and error," through which the requisite experience can be developed for gradually adapting the system to needs as regards protection and promotion of human rights. 

          A wealth of meaningful experience has been progressively developed, for instance, in the individual cases system. Individual petitions were initially examined using procedures developed at a time of widespread and systematic violations in the Hemisphere, which required a very flexible and swift approach on the part of the Commission.  In consequence, the norms and practices at that time did not follow a strict sequence, and the then-incipient case law of the system's organs covered fundamental rights.   

          With the culmination of this stage, and in the light of parameters that were progressively set out by the Court, the Commission began a process of adjusting its procedures.  This process has involved modification and consolidation of a series of procedural practices, as well as periodic exchanges with the Court in order to discuss problems of procedure deriving from particular interpretations of the American Convention.  Included among the practices introduced over the last four years is that of recording petitions received according to certain common parameters, the aim being to ensure transparency and uniformity and to prepare statistics.  It is worth mentioning that only 33% of petitions received are opened as cases, which reveals the prudence that the Commission exercises in carrying out its quasi-judicial mandate.  The Commission has also expressly incorporated so-called fourth-instance doctrine in its case law, under which it refrains from re-examining events or offering interpretations of domestic law, except where flagrant violations of the provisions contained in the Convention or the American Declaration are concerned, thereby showing due deference to the independent judicial branches that protect access to justice for individuals.   

          The conclusions reached in the seminar held by the Commission in December 1996, which was attended by the states and the foremost experts in the area, revealed that the majority of the issues raised–some of which are no different from some of those that have led to the creation of this Ad Hoc Working Group–must be addressed through an ongoing process of improvement of the respective regulations of the system's organs so as not to undermine the legitimacy of basic treaties by making substantial reforms that elicit little support in practice. 

          The Commission's study initially focused on ways to improve its regulations, to which end it consulted users of the system and the States Parties.  Obviously the Commission will also take into account the discussions held by the illustrious Ad Hoc Working Group and during the dialogue conducted within the Committee on Juridical and Political Affairs of the OAS.  We would like to thank the large number of states that have brought to our attention their points of view.   

          Although the proposals are diverse and varied, there is, nevertheless, one area on which the states, petitioners, and the Commission all agree: the Commission cannot remain in the ambiguous position of preliminary adjudicator and prosecutor before the Court.  The Commission is convinced that its role before the Court should be limited to broad representation of the high interests of the Convention, and to reserve representation of private interests for those victims who, given their situation, expressly request it.  It should be made clear that achieving a system in which victims choose their representatives before the Court–after the Commission refers their case–does not require modification of the American Convention or conclusion of a special protocol.  If the desired aim were to establish the right of individuals to present cases directly before the Court–which under current provisions only the Commission and the States Parties may do–the only way to achieve that is through a special protocol, which, as the Commission has stressed, can be perfectly well dispensed with. 

          Independent representation of victims before the Court only requires issuing a few regulatory provisions.  This is a solution that has the full backing of the system's users and has been successfully in effect since 1997 in the reparations phase of proceedings, which proves that the system is capable of bearing the additional administrative burden which that represents.  We must express our enthusiasm following our recent meeting with the Court to coordinate viewpoints, in which the Court declared its support for continuing with the process of reforming its Rules of Procedure to permit the Commission and victims to have the role to which we aspire.  By the same token, we have made progress with the Court on the evidence-gathering system to avoid needless duplication and costs. 

5.          Increase in the material resources of the system's organs 

          While recognizing the commitment demonstrated by the member states in designating the Commission as an area of priority financing within the Organization, the Commission's capacity to fulfill its mandate more effectively requires a matching commitment in allocation of financial and human resources.  A budget increase in the mid-1990s helped to boost the Commission's productivity in recent years.  Today the system requires more resources for dealing with the challenges that arise.  

          The sad reality indicates that the total amount of the Commission's budget for the financial year in progress, which is US$2.9 million, represents less than 3.7% of the Organization's overall budget.  Approximately US$2 million of those US$2.9 million are earmarked for the salaries and benefits of Commission employees.  The remainder barely covers the costs incurred by the preparations for and holding of two regular sessions and one special session, publication of our Annual Report, performance contracts, supplies, and similar items.  This means that the budget does not provide sufficient funds for on-site visits to member states and litigation of individual cases before the Court.  I should point out, incidentally, that in the past four years the Commission has carried out between two and three on-site visits per year at the request of member states. Furthermore, there are currently 23 contentious cases and more than 10 applications for provisional measures pending before the Inter-American Court of Human Rights.  In sum, the Commission needs a considerable injection of fresh financial resources to cover the minimum cost of processing nearly 1,000 open cases, proceedings before the Court, requests for visits from states, and its other duties. 

6.       The participation of the Inter-American Institute of Human Rights and civil society in strengthening the system 

          The debate on strengthening the system of protection must, by necessity, involve the participation of the Inter-American Institute of Human Rights and of civil society, as the General Assembly of the OAS expressly pointed out in resolution AG/RES. 1633 (XXIX-O/99). In recent years the Institute and civil society have made a crucial contribution to the promotion and protection of human rights in the Hemisphere, as well as to the workings of the system.  The system needs their vision and participation.  Furthermore, there is no reason for not holding a debate of such vital importance in conditions of transparency and openness in order to ensure the best possible outcome.  We take the liberty of recommending that the Institute and representatives of civil society be invited to set out their points of view at the next meeting of the Ad Hoc Working Group.  We hope that this meeting establishes a mechanism that ensures they are appropriately consulted.   

          The Commission considers that these six points represent the main aspects for the Ad Hoc Working Group to take into account in addressing the issue of strengthening and improving the system.   

          In recent months, a series of proposals seemingly designed to strengthen the system have come to the attention of the Commission.   

          The most ambitious proposal that has been put forward is to merge the organs of protection in the manner of Protocol Nº 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms.  Placing the system of international protection under the complete control of a judicial organ–necessarily accompanied by the right of the individual in any of the States Parties to file suit directly against the states before an international court–is something that has recently entered into effect in Europe, together with substantial advances in the unification process of a number of countries, such as elimination of all import taxes and adoption of a single currency. This process denotes a generalized consensus. 

          However, the incorporation of the countries of Eastern Europe in the European system has created great tensions by swamping the system with thousands of cases a week.  At the seminar that the IACHR held in Washington in 1996, the European participants questioned the wisdom of having reduced the flexibility of the European system and having exposed it to tensions of great magnitude. They also had a high opinion of the two-organ system in our Hemisphere, which makes it possible to filter out petitions that would otherwise overwhelm the system.  They also thought highly of the alternative whereby the Commission refers some cases to the Court, while in respect of others it decides only to inform the public and the states.  Added to the foregoing is the Commission's power to carry out on-site visits on the initiative of states for diverse reasons (violations of rights, to consolidate progress, to assess categories of law, etc.).  These powers and techniques are the outcome of a rich and valuable historical experience, and reflect the need to understand and act in a complex reality that combines judicial and semi-judicial action for the sake of protection of human rights.   

          An example of this flexibility in action and of the value of the Commission's activities is its role of encouraging friendly settlement of cases.  Indeed, as well as acting as a "filter" for the huge volume of individual petitions received each year, the Commission has performed the role of mediator or entity that notifies the parties in order to help reach friendly settlement of cases, to which end it employs techniques that are not available to a court of law, such as confidentiality of discussions and proposals, divisibility of matters submitted to it, isolation of differences, etc., thereby making it possible for disputes in a considerable number of cases to be settled in a friendly manner. 

          The Commission has also developed practices that enable it to bring to the attention of states situations that may lead to violations of the right to life and to humane treatment, without need to adopt precautionary measures or to request the Court to order provisional measures.  This mechanism has proved to be immensely useful for all parties involved.  Accordingly, the presence of the Commission in Washington, where it is able permanently to make available its services to the states and organs of the OAS through its semi-judicial functions, must also be valued and acknowledged as having been of immense use in the protection of human rights. 

          Finally, the Commission should mention that regardless of the process of change that is embarked on, it must allow, after achieving the necessary maturity, for greater universality in the application of all the system’s norms.  At the same time, we should be aware that any amendment that affects the jurisdiction of the Commission may leave unprotected the inhabitants of the member states that have not ratified the Convention.   

          All that remains is to reiterate that any reflection or process undertaken must lead to a real strengthening of the supervisory bodies so that they can carry out their mandate to protect the men, women, and children of the Hemisphere in a more effective manner, as well as to the exercise of the collective guarantee that the political bodies have a duty to provide in order to ensure effective defense of human rights. 

          To that end, it is necessary to continue making improvements to the appropriate regulations, to grant sufficient resources, and to strengthen political will in support of the system. The Commission participates in an eager and committed manner toward those objectives, by whose accomplishment history, future generations, freedom, and human rights will judge us. 

          Accordingly, the Inter-American Commission on Human Rights wants to make it perfectly clear that it wishes this Ad Hoc Working Group every success in its efforts, and that our recommendations are based on the common desire to proceed in consensus down paths that will doubtless open up opportunities for all of us, together, to forge the utopia of a more equal and fair society in which human rights form the very basis of the democratic state. 

          The Commission is convinced, given the high level of the members of the Working Group, that this aim will indeed be fulfilled. 

          Thank you very much.