IN, WHICH FURTHER STEPS ARE NEEDED TO
GIVE EFFECT TO THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF
THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
In its five annual reports, the Commission has presented to the
General Assembly of the Organization several topics whose seriousness
and importance to respect for and effectiveness of human rights it
considered on each occasion of the highest interest, and on which it has
suggested specific measures in order to advance along the path to their
full observance. The General Assembly, for its part, has on several occasions
endorsed the recommendations of the Commission in the resolutions
adopted at its annual sessions.
Among the topics to which the Commission assigned special
importance in its previous reports are the phenomenon of disappeared
prisoners, torture, social, economic, and cultural rights, and the
problems of refugees in the Americas.
The IACHR wishes to take this occasion to set forth some ideas on
those topics, in which further steps are needed to give effect to human
In relation to the most serious phenomenon of the
disappeared/detained persons, the Commission in its last five annual
reports to the General Assembly has pointed, inter alia,
procedure is cruel and inhuman. As
experience shows, a “disappearance” not only constitutes and
arbitrary deprivation of freedom but also a serious danger to the
personal integrity and safety and to even the very life of the victim.
It is, moreover, a true form of torture for the victim’s family
and friends, because of the uncertainty they experience as to the fate
of the victim and because they feel powerless to provide legal, moral
and material assistance.
it is a demonstration of the government’s inability to maintain public
order and state security by legally authorizes means and of its defiant
attitude toward national and international agencies engaged in the
protections of human rights.
As the IACHR has stated, a particularly serious aspect of this
problem is the fact, repeatedly denounced by this Commission, that the
children born of women who have “disappeared” while pregnant and
young children abducted with their parents are not handed over to their
legitimate guardians—grandparents, uncles, aunts or other
relatives—but placed in institutions and in some cases given up to
adoption in the country or abroad.
The Commission has also stated:
has been the opinion of the Commission that the status of
“disappeared” seems to be a comfortable expedient to avoid
application of the legal provisions established for the defense of
personal freedom, physical security, dignity, and human life itself.
In practice, this procedure nullifies the legal standards
established in recent years in some countries to avoid illegal
application of the use of physical and psychological duress against
Commission also repeated its request that the fate of those who have
disappeared after being arrested be clarified and their families
informed of their status. It
also recommended that centralized arrest records be established, that
only competent authorities with proper identifications make arrests, and
that the detainees be held in places designed for the purpose.
its part, the General Assembly in resolution AG/RES. 443 (IX/0/79),
adopted on October 31, 1979, resolved in its operative paragraph 3 the
declare that the practice of disappearance is an affront to the
conscience of the hemisphere, and is totally contrary to common
traditional values and to the declarations and agreements signed by the
American states, and to endorse the Commission’s recommendations for
prompt clarifications of the status of persons who have disappeared….
General Assembly at its tenth regular session, in resolution AG/RES.510
(X-0-80) adopted in relation to the Annual Report and Special Reports of
the IACHR, referred again to this topic in its operative paragraphs 12
and 13 as follows:
To emphasize the need to put an immediate end, in those countries
in which it may occur, to any practice that leads to the disappearance
of persons and also to urge that the necessary efforts be made to
determine the status of persons whose disappearance has been reported.
To recommend to the governments, in connection with the preceding
paragraph, that central records be established to account for all the
persons that have been detained, so that their relatives and other
interested persons may promptly learn of any arrest that may have been
made; to request that arrests be made only by competent and duly
identified authorities, and that the arrested persons be kept in
premises designed for that purpose.
its eleventh regular session, held in Saint Lucia, the General Assembly,
in adopting resolution AG/RES.543 (XI-0/81) did not mention this
delicate topic, despite the recommendations made in that sense by the
Commission. However, at its
twelfth regular session it adopted resolution AG/RES.618 (XII/0/82),
which in its operative paragraphs 7 and 8 reiterated the recommendations
of the Commission endorsed in 1980.
judge by the denunciation received, the use of this inhuman practice has
apparently diminished; but it is a matter of concern to the Commission
that in some countries the structure that has permitted the
disappearances still exists, as is shown by the arrests made by elements
of the security forces with the acceptance or acquiescence of the
Governments, followed by a period of time in which the authorities,
especially the police authorities, deny the arrest, even, as in some
cases known to the Commission, in the replies of the authorities to the
judges called upon to pronounce judgment on writs of habeas corpus.
the foregoing reasons, the Commission reiterates the severe condemnation
that this cruel and inhuman procedure deserves which constitutes a very
serious present or potential violation of such fundamental rights as the
right to life, to freedom and to personal security and integrity of a
human being. Moreover, it places the victim in an absolutely defenseless
position, with serious violation of the rights to justice, to protection
against arbitrary arrest and to due process of law. It also affects the whole circle of relatives and friends,
who wait months and sometimes years for some news on the victim’s
fate. This uncertainty and
the deprivation of all contact with the victim creates serious family
disturbance, particularly to the children, who in some cases have been
eye witnesses of the abduction of their parents or relatives and of the
physical or verbal abuse to which they were subjected during such
of the social consequences this practice generates, the Commission must
reiterate its recommendations and urge all the states to avoid its use,
the IACHR also proposes to the General
Assembly that it declare that the practice of forced disappearances in
the Americas should be considered a crime against mankind.
En relation to torture, the Commission has constantly rejected
its use and has advocated the adoption of measures to suppress it and
punish those who practice it. Thus,
in its 1977 report, the Commission pointed out:
absence of a concerted effort at national and international levels to
put an end to torture is obvious. In
this regard, a most significant step would be the adoption of a
convention to make torture an international crime.
in its reports of the years 1978 through 1982, the Commission showed its
concern for this topic in the following terms:
Commission also regret the fact that in some states of the Organization,
there is systematic recourse to the use of all types of physical and
mental coercion, not only during pretrial interrogation, but even after
an administrative or legal prison sentence has been handed down.
in some countries appears to be a usual practice in the investigation of
all kinds of facts, particularly those that have to do with public
policy (ordre publique) or the security of the State.
Commission is also concerned by the fact that despite its repeated
observations and recommendations, complaints continue to be received
alleging physical and psychological torture of individual under
detention not only for reasons of public order but also for common
crimes and, even worse, that effective measures do not appear to have
been taken to prevent and punish these practices.
torture is due to the lack of standards that would effectively protect
persons detained or due to the fact that these standards are not applied
in practice or, what is more various, due to the intimidation of judges
and high officials of the administration, who do not perform their duty
of preventing these acts by investigating and punishing those
responsible for such acts with all force.
is necessary for all governments to adopt a deliberate policy against
torture. This policy must
have two basic components: a thorough investigations of all accusations
of torture, to be conducted by impartial authorities, and public example
and sanction of those responsible for acts of this nature, no matter
what their position or standing.
through rigorous investigations, submission to trial, and the imposition
of severe penalties on the persons responsible for these tortures will
it be possible to put an end to, or at least to limit, this abominable
practice and prevent its recurrence.
its Annual Reports of the years 1980-1981 and 1981-82, the Commission,
having continued to receive denunciations and reports on the use of this
practice, reiterated to the General Assembly its recommendations on the
mater made in earlier years.
the recommendations made by the Commission in its 1977 report, the
General Assembly at its eighth regular session adopted resolution
AG/RES. 368, on July 1, 1978, which, in its sixth operative paragraph,
requested the Inter-American Juridical Committee to prepare, in
cooperation with the IACHR, a draft convention defining torture as an
The Commission and the Inter-American Juridical Committee prepared and presented no the General Assembly for consideration, at its tenth regular session, in November 1980, the aforementioned draft convention. The General Assembly, through resolution AG/RES. 509 (X-0/80), adopted at that same session, resolved in its second operative paragraph:
forward that draft with its statement of reason and the explanations of
votes given by the members of the Commission, to the governments of the
member states for consideration, so that they may formulate their
observations and comments and send them to the Permanent Council before
April 30, 1981, so that the Council may introduce the appropriate
amendments in the draft convention and submit it to the next regular
session of the General Assembly.
the recommendations made by the General Assembly, as of November 1982
only nine governments had made their observations and the Permanent
Council had not concluded its study of the draft convention, for that
reason, the General Assembly resolved in its resolution AG/RES. 624
(XII/0/82) as follows:
To extend the period given to the Permanent Council through
resolution AG/RES. 509 (X-0-80), so that the government of the member
states may have the opportunity to present their observations and
comments on the draft Conventions Defining torture as an International
Crime before June 30, 1983, and so that the Permanent Council may
introduce the appropriate amendments and submit them to the General
Assembly at its thirteenth regular session.
To urge the governments of the member states that have not
already done so to send their observations and comments on the draft
Convention Defining Torture as an International Crime before the
deadline set in this resolution.
of the date of the approval of this report, thirteen states had made
their observations, and a Working Group of the Committee on Juridical
and Political Affairs had been working on the mandate issued by the
Commission, respectful of the internal sovereignty of the states,
considers that the time that has passed for considerations of a topic of
the importance and seriousness of the one analyzed here has been
sufficient, and that the events that continue to occur to the hemisphere
warrant urging the countries that during this session of the General
Assembly the study be concluded and the draft convention be approved, or
that a special session of the General Assembly be convoked for that
exclusive purpose during the course of 1984.
The adoption of either of those alternatives would be the best
demonstration of the will of the governments to eradicate the use of the
practice of torture which is the shame of the Hemisphere and
incompatible with the noble ends of the Inter-American System.
Finally, the Commission also reiterates the need to punish with
all of the force of the law those who have perpetrated this crime.
With special emphasis, the Commission has referred, in its Annual
Reports for the years 1979 through 1982, to the subject of social
economic, and cultural rights. On
various occasions the IACHR has pointed out the following ideas:
of the economic and social rights is another cause, though more diffuse
and problematic, of the violence and social conflicts.
The general and apparently well-founded belief is that in some
countries, the extreme poverty of the masses--the result in part of an
inequitable distribution of the resources of production--has been the
fundamental cause of terror that afflicted and continued to afflict
those countries. However, in general, the Commission has been extremely
cautions in this sensitive area, because it recognized the difficulty of
establishing criteria that would enable it to measure the state’s
fulfillment of their obligations. It
has also seen the very difficult options that the governments face when
allocating resources between generations, consumption and investment,
and hence, between current and future generations.
Economic policy and national defense policy are closely related
to national sovereignty.
It also stated:
the essence of the legal obligation incurred by any government in this
area is to strive to achieve the economic and social aspirations of its
people, by following an order that assigns priority to the basic needs
of health, nutrition, and education. The priority of the “rights of survival” and “ basic
needs” is a natural consequence of the right to personal security.
Commission added that efforts to eliminate extreme poverty have been
made under radically different political, economic, and cultural
turn, those efforts have produced spectacular results as has been shown
in those countries that have expanded public health care services at the
lowest level of society, hat have tackled the problem of mass illiteracy
systematically, that have undertaken comprehensive agrarian reform
programs, or that have extended the benefits of social security to all
sectors of the population.
date, there is no political or economic system or individual development
model that has demonstrated a clearly superior capability to promote
economic and social rights; but whatever the system or model may be, it
must assign priority to attaining those fundamental rights which permit
the elimination of extreme poverty.
General Assembly, in its resolution AG/RES. 510 (X-0-80), adopted on
November 27, 1980 AG/RES. 543 (XI-0-81), adopted on December 10, 1981,
and AG/RES. 618 (XII-0/82), adopted on November 20, 1982, has shared the
considerations put forth by the Commission, reaffirming the conviction
that effective protection of human rights should also extend to social,
economic, and cultural rights, and pointing out, likewise, the
responsibility of the economically more developed member states to make
every possible effort to participate fully in cooperation for
hemispheric development, since it is a fundamental means of helping
alleviate extreme poverty in the Americas, especially in the most needy
the IACHR whishes to mentions particularly resolution AG/RES. 619
(XII-0-82), adopted on November 20, 1982, which instructed the General
Secretariat to prepare a preliminary draft Additional Protocol to the
American Convention on Human Rights defining the social, economic, and
cultural rights, and provides that once the preliminary draft had been
prepared, the General Secretariat should forward it to the governments
of the member states and to the Preparatory Committee, to give them an
opportunity to make their observations and recommendations thereon, so
that it might be considered by the General Assembly at its thirteenth
Inter-American Commission on Human Rights is aware that the General
Secretariat of the Organization has prepared a preliminary draft
protocol in compliance with the mandate from the General Assembly
described in the preceding paragraph, and has forwarded it to the
governments of the member states so that they may make observations and
recommendations and inform the General Assembly thereon.
this respect, the Commission considers that as an organ specifically
responsible for promoting and defending human rights, it has the
obligation to play a more active role to protect economic, social, and
cultural rights, just as it has in relation to civil and political
virtue of the foregoing, the Commission wishes to reaffirm the right it
has in accordance with Article 77 of the American Convention on Human
Rights to submit proposed additional protocols to that Convention for
consideration by the States Parties of the General Assembly.
Pursuant to that provision, the IACHR will in due course present
its observations on the preliminary draft Additional Protocol prepared
by the General Secretariat.
Commission considers that the General Assembly should reiterate the
criteria stated on this topic, cited above, adopting specific measures
for effective carrying out of its resolutions.
In this connection, the Commission proposes to the General
Assembly that, to celebrate the twenty-fifth anniversary of the
establishment of the Commission and the fifteenth of the American
Convention, it convoke, during 1984, a Specialized Conference, to be
held in 1985, taking into account administrative and financial
considerations and offers to countries to be host to it, which may
conclude the essential and pressing task of approving the Protocol to
the Convention, point out the competent organs for the protection of
these rights, and establish suitable mechanisms for promoting their
In its last two annual reports, the Commission has also expressed
to the General Assembly its concern over the impressive phenomenon of
the massive displacement of persons, which has caused transfers of
thousands of persons from one country to another.
the Commission’s judgment, the events of the seventies and the
beginning of the eighties have represented a shift in the old tradition
of granting political asylum. This
shift has come about for the following reasons:
a) the number of people needing political asylum is several times
more than at any other time in the region’s history; b) the make-up of
groups requesting political asylum has changed from individual political
leaders to large groups of people whose fears are well-founded given the
state of widespread violence and their own militancy in politically
vulnerable sectors of society, even though they may not necessarily have
taken part in individual political action; c) while the earlier exiles
were generally people of means and with a certain level of education,
those asking for asylum in recent years are overwhelmingly people
without financial resources, and who are lacking in education and job
skills; d) some of the countries that have traditionally offered refuge
to political exiles are refusing to accept Latin American
refugees, but are indeed the principal sources of refugees in the
region; e) the domestic laws and regional conventions on refugees and
asylees are inadequate for mass asylum situations; f) the generally poor
economic conditions in mots
of the hemisphere make it difficult to relocate
thousands of additional aliens, and g) many governments in the
regions have not been
willing to take in refugees for ideological reasons, considering them to
be a threat to their national security.
the Commission’s view, the Organization of American States has an
obligation to solve this problem, especially considering the new and
dramatic situation of refugees in the last few years.
General Assembly in its resolution AG/RES. 618 (XII-0/82), adopted on
November 20, 1982, in its imperative paragraph 10, resolved:
10. To take note of the recommendations made by the
Inter-American Commission on Human Rights regarding the question of
human displacements in the regions and of the Permanent Council’s
resolution on the same subject (CP/RES. 377 (510/82), and to request
that body to present a report to the thirteenth regular session of the
General Assembly on the status of work in this area, including the
Commission’s recommendations contained in Chapter VI of its report and
on the work being carried out under the United Nations High Commissioner
for Refugees (UNHCR/Organization of American States cooperation program.
in mind the foregoing the Commission whishes to reiterate at this
opportunity the measures proposed in its Report 1981-82, which in its
opinion are fundamental requisites for dealing with this problem.
That the Organization of American States reaffirm the member
states’ obligation to recognize and honor the principle of
non-refoulement, and that this principle be respected both in border
areas and throughout their entire territory.
That the Organization of American States reaffirm the
humanitarian and non-political nature of the granting of asylum, which
under no circumstances constitutes are unfriendly act by one state
That the Organization of American States urge the member states
to ratify the United Nations Conventions and Protocol relating to the
Status of Refugees, and that they also expand their domestic legislation
in areas related to refugees and asylum.
That the definition of refugees in the region recognize persons
fleeing their countries because their lives have been threatened by
violence, aggression, foreign occupation, massive violations of human
rights and other circumstances that cause a threat-down in l’ordre
pulic and for which there are no domestic remedies.
That the Organization of American States urge those member states
in whose territories exiles have sought political asylum to cooperate
fully with the efforts of the United Nations High Commissioner for
Refugees and its local affiliates, and to facilitate their work.
That the member states that are unable to assimilate large groups
of refugees on a permanent basis, take measures to assure the
refugees’ security in their territory until them can be permanently
the IACHR whishes to make clear that it is not intended, through the
adoption of these measures, to establish an inter-American agency
parallel to that which exists in the United Nations for refugees, since
that would be a duplication of efforts and ignore the admirable work
that the Office of the High Commissioner for Refugees has been carrying
on. What is sought is to
establish an inter-American authority charged with giving assistance to
and protection of refugees, to work in close collaboration with the
Office of the High Commissioner. The
experiences that the Inter-American Commission has had in the cases of
Haitian refugees in the United States, of Guatemalan in Mexico and of
Nicaraguan Miskito Indians in Honduras, especially in the joint work
carried out with the Office of the High Commissioner in this last case,
and the many individual cases in which the Commission has had to act so
that the principle of “non-return” may be respected, reaffirm its
conviction that the Commission is the natural organ that would appear to
be called upon to act with the inter-American authority.
Another example of joint work by the Organization and the Office
of the High Commissioner is the case of the cooperative program on the
legal status of asylees, refugees and displaced persons that is now
being developed and that also indicates the need for stipulating powers
and setting functions in this field.
In the light of what has been said the Commission desires to
reiterate the urgent need for a resolution that will institutionalize
authority in this field in the Americas, determine its relations with
the Office of the United Nations High Commissioner for Refugees, and
grant it the resources and funds it may need for its work of helping the
refugees and participating in resettlement programs.
view of the foregoing consideration, the Commission, in addition to
repeating its earlier recommendations, requests the General Assembly of
the Organization of American States at its thirteenth regular session to
adopt the following measures:
That it declare that the practice of forced disappearance in the
Americas be considered a crime against mankind, urging the states in
which it has occurred to inform the relatives of the persons who have
disappeared about their status.
That it conclude the study of and approve the draft Convention
Defining Torture as an International Crime during the course of its
thirteenth regular session, or in the alternative, that it convoke a
special session of the General Assembly for that exclusive purpose to be
held during 1984.
That to reaffirm the importance of social, economic, and cultural
rights, and to celebrate the twenty-fifth anniversary of the
establishment of the Inter-American Commission on Human Rights and the
fifteenth anniversary of the “Pact of San Jose”, a Specialized
Conference be convoked during 1984 to be held in 1985, that will approve
the Additional Protocol to the American Convention that will define
social, economic, and cultural rights; designate the competent organ for
the protection of those rights; and establish suitable mechanisms for
promoting their effect.
That it take the necessary decisions to institutionalize the
authority in the Americas responsible for assistance to and protection
of refugees in the hemisphere; determine its relations with the Office
of the United Nations High Commissioner for Refugees; and grant to that
authority the resources and funds it may need for carrying out its work.
 Annual Report of the IACHR 1977, page 26.
Annual Report of the IACHR 1980-81, page 113.
 Annual Report of the IACHR 1981-82, page 127.
Annual Report of the IACHR 1977, page 27.
Inter-American Commission on Human Rights, Ten Years of
Activities 1971-1981, pages 342-343.
 Annual Report of the IACHR 1979/80, page 151-152.
Annual Report of the IACHR 1980-1981, page 125.
Annual Report of the IACHR 1981-1982, page 134.
Annual Report of the IACHR 1981-1982, p. 135.