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I. Introduction by Mr. Warren Allmand
Mr. Allmand began his presentation by stating that the ICHRDD had organized the seminar because of its concern regarding human rights in the Americas and the additional constraints that might arise from hemispheric economic integration. Whereas the Organization of American States has norms and mechanisms designed to uphold human rights and democracy in the hemisphere, the present challenge is to ensure that these norms and mechanisms will be enhanced rather than weakened by the economic integration process. In this respect, he deplored the persistence of far too numerous cases of human rights abuse such as the violation of judicial independence, the abuse of national security laws, impunity for human rights violators, and the lack of mechanisms to promote economic and social rights.
The hemispheric economic integration process and structures must explicitly address these issues and create policies and institutions to impede the curtailment of human rights. Furthermore, democracy requires much more than simply holding elections. According to the ICHRDD, there is a structural link between democracy and human rights; true democracy must defend all human rights, including minority, aboriginal, and workers' rights, freedom of expression and association, and civil, political, social, economic, and cultural rights. Economic integration will inevitably entail a restructuring which will fundamentally affect the lives and living conditions of all citizens in the hemisphere. No institution for hemispheric democratic governance currently exists and governmental policies are adopted without public consultation nor citizens' participation.
Mr. Allmand ended his presentation hoping that Canada and the United States would soon sign the American Convention on Human Rights. Finally, he expressed his wishes for fruitful discussions throughout the seminar.
II. Presentation by Mr. Claudio M. Grossman
Mr. Grossman said he was honored to have been invited to participate in the seminar because the ICHRDD is committed to supporting democratic development initiatives, encouraging the building of links between human rights and democratic development, promoting the rights of women and first nations, and the participation of civil society. Like the ICHRDD, the Inter-American Commission on Human Rights believes that dialogue, the exchange of views, and the meeting of civil society and government are essential elements of democracy. Mr. Grossman also hoped that Canada's joining the Organization of American States (OAS) will foster stronger participation in OAS activities on the part of the Canadian State and civil society.
Impressive developments have taken place in human rights in the region. The holding of elections in almost all the countries in the hemisphere, the breakdown of authoritarian political regimes, the dramatic decrease in the number of disappearances, summary executions, and other forms of brutal repression demonstrate real progress. However, serious problems remain and a closer look shows societies in transition that, in the midst of poverty, are struggling to overcome their dictatorial past. The inter-American human rights system must cope with demands coming from widely different industrialized and developing societies. Therefore, it must show a high degree of flexibility and at the same time maintain universality.
While elections are a sine qua non for democratic rule, democracy requires a rich civil society, independent and modern judiciaries, and efficient enforcement agencies. In short, democracy must embodya dynamic process of expansion of fundamental values where every person counts.
In the framework of the Americas, the first duty of the OAS is to avoid authoritarian regressions and to promptly react against situations that threaten to destroy democratic achievements. Its second, no less important, duty is to foster the expansion of rights and freedoms. To meet these challenges, the inter-American system can, in the case of gross and massive violations of human rights, organize in loco visits to the country in question and then, if need be, publish a report on the country and mention the violations in Chapter V of its Annual Report. These visits provide civil society groups with legitimacy, mobilize public opinion, and, above all, create powerful incentives for states to consider the international implications of their policies.
Mr. Grossman also spoke about the means available to the Commission to address individual human rights violations. Among these, there is the case procedure which allows the Commission to open a case at its own initiative or as a result of a petition. For violations of human rights that do not take place within the framework of mass and gross violations, the case approach is without doubt a powerful mechanism of action. It performs a preventive role and warns the international community that a violation has occurred. This approach for individual cases also articulates regional human rights standards. Individuals can file complaints to the Commission if they believe that their rights under the American Declaration or Convention have been violated. The Commission is the only hemispheric organ that examines petitions involving countries that have not ratified the Inter-American Convention on Human Rights and accepted the Inter- American Court's compulsory jurisdiction. The Commission can make recommendations to put an end to the violations and also suggest reparations for the victims. If a state does not comply with a recommendation, the Commission can decide to publish a report on the country and include it in its Annual Report of the Commission to the OAS General Assembly. The publication of findings is the inter-American human rights system's only means of sanction.
When the Commission takes a case to the Court, its role as adjudicator is automatically transformed into that of advocate and, consequently, party to the case. The Commission can make pleadings, examine witnesses, present proof, etc. In other respects, while most Court decisions have been implemented, the General Assembly has, on several occasions, shown itself powerless to uphold them when states have not complied.
The Commission has appointed rapporteurs or working groups to address human rights issues with a collective component such as the rights of women, indigenous peoples, migrant workers and prison conditions. The Commission's purpose is to bring these situations to the attention of the hemispheric community, to adopt recommendations, or propose the adoption of regional treaties or declarations. Moreover, in order to contribute to the process of rights expansion and to avoid their deterioration, the Commission undertakes promotional activities. However, too much emphasis given to promotion would reduce even further the very limited resources available to the Commission for more tangible activities that only the Commission can perform (e.g.: cases).
The inter-American system played an important role in the struggle against dictatorships and contributed to their downfall. Norms and procedures established by the Commission were used to denounce authoritarian rule. Country reports and in loco visits, the most important mechanisms of the system then, contributed to the creation of truth commissions, by documenting cases of human rights violation and contesting the credibility of those who denied the existence of violations. Nevertheless, there is no way to know how many individual lives were saved by the system.
The movement from authoritarian regimes to democracy required a shift in the priorities of the system. The Commission has revitalized the issuance of provisional measures, established a procedure for individual petitions, revised its system of hearings, created chambers that report to the plenary, presented guidelines to bring cases to the court, consolidated its practice of appointing petitioners as legal advisors before the Court, and modified its regulations to protect the confidentiality of cases. In short, Mr. Grossman gave a positive assessment of the Commission's work. Both the Court and the Commission are developing very important contributions to jurisprudence that are increasingly taken into account by national courts. In particular, the two organs helped develop the interpretation of due process and of the rights stipulated in the Convention.
However, the inter-American human rights system continues to face serious problems, in particular the lack of compliance on the part of certain states as well as underfunding and understaffing. The political organs of the OAS do not sufficiently use diplomatic influence to ensure that Commission and Court decisions are always respected.
Mr. Grossman concluded his presentation by looking at the challenges now facing the Commission. With mass and gross violations of human rights unfortunately continuing to occur in some countries in the region, the Commission must find better ways to process both individual cases and continue to use resources to deal with massive violations. It seems important to continue to provide political legitimacy to the system and to avoid measures that would weaken it, such as a weakening of the supervisory organs established in the OAS. Mr. Grossman ended his presentation by asking for the continued support for the inter-American human rights system's initiatives. It is the democratic process and awareness-raising that will bring about the states' political will to support the system. The process now needs to be supported, not dismantled.
III. Questions and Comments
Jennifer Stoddart, Commission des droits de la personne du Québec, stressed the role of the media in informing and educating the public and the impact of public opinion on government policies. She asked Mr. Grossman what initiatives the Commission had taken to foster public awareness.
Mr. Grossman answered that the lack of resources at the Commission prevents it from systematically educating the public. The hiring of a media relations officer would certainly help. Nevertheless, the Commission's in loco visits raise interest in the media and mobilize public opinion. For example, its last visit to Mexico produced close to three hundred articles in the media.
John Foster, College of Law, University of Saskatchewan, asked Mr. Grossman what are the Commission's strategies to defend social and economic rights.
According to Mr. Grossman, the Commission's strategies are scarce. Many countries have yet to ratify the Protocol of San Salvador, which, incidentally, contains a reporting mechanism. Moreover, the current economic and political changes, such as the privatization of the economy, make social and cultural rights all the more important.
George Wright, consultant, questioned the competence of the people nominated to the Commission.
Mr. Grossman answered in jest that a ratification by Canada of the American Convention on Human Rights would assist us to nominate better qualified Commission members. He also wondered why Canada has not yet ratified the Convention. He valued Canada's contribution and thought it would increase with a ratification. He is convinced, however, that the system's real problem is in fact a lack of resources and political will rather than qualified personnel.
Mr. Allmand asked for clarification regarding the Court's authority to examine issues regarding the collective rights of indigenous peoples.
Mr. Grossman answered that the Court has jurisdiction to examine such issues. He briefly explained that the Court had, however, refused a collective reparation claim filed on behalf of the Saramacas of Surinam concerning the Brokopondo massacre, giving only individual compensation to the victims.
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